KOPRAN LTD. Vs. CCE

JUDGEMENT

(1.) HEARD both sides. These are two stay applications filed in the above referred appeals by the assessee for waiver of pre deposit ordered as per Section 35 of the Central Excise Act. In appeal No. E/284/07 there is denial of cenvat credit of Rs. 4,37,958/ - on the ground that invoices are not in conformity with the particulars prescribed vide Notification No. 15/94 -CE(NT) dated 30.3.94 as amended by Notification No. 32/94 -CE(NT) dated 4.7.94. It is also pointed out by the DR that not only the invoices are defective but the product involved is also differently shown. The ld. Advocate for the applicants has submitted that the product is one and the same but that when it goes to the dealer from the manufacturer different description of the product is used in the invoices concern and even the value of such product in two invoices amount to Rs. 11,000/ -. According to the counsel for the assessee the case on hand is covered by the Larger Bench decision in Kamakya Steels (P) Ltd. v. Commissioner of Central Excise, Meerut . In the above referred ease the amendments to the Central Excise Rules was also discussed. One of the amendment is that the credit under Sub -rule (2) shall not be denied on the ground that in all the documents mentioned in Sub -rule (3) does not contain all the particulars required to be contain therein under these rules, if such documents contain details of payment of duty, description of the goods, assessable value, name and address of the factory or warehouse. According to the ld. counsel the necessary four ingredients as mentioned above are very much present as shown in the invoices. The amendment affected to the said rules also apply to the pending cases as per the circular 441/7/99 -CX dated 23.2.99. Therefore, from the above material it is observed that there exists strong prima -facie case in favour of the assessee in view of the above said amount confirmed.

(2.) IN the second appeal No. E/285/07 there is denial of modvat credit of Rs. 87,100/ - on capital goods and imposition of penalty of Rs. 25,000/ - under Rule 173Q of Central Excise Rules, 1944 on the ground that the capital goods in question are used at the stage prior to manufacture of the goods. In this connection it is submitted that the capital goods can be used at any stage of the manufacturing process in the factory unlike the inputs. In this context the ld. advocate relied upon the decision of the Supreme Court in the case of Vikram Cement v. Commissioner of Central Excise, Indore and Commissioner of Central Excise v. Jawahar Mills Ltd. the observations made in para 4 of this judgment are relevant which are extracted hereunder. 4. The aforesaid definition of 'Capital goods' is very wide. Capital gods can be machines, machinery, plant, equipment, apparatus, tools or appliances. Any of these goods if used for producing or processing of any goods or for bringing about any change in any substance for the manufacture of final product would be 'Capital goods', and, therefore, qualify for availing Modvat credit. Per Clause (b), the components, spare parts and accessories of the goods mentioned in Clause (a) used for the purposes enumerated therein would also be 'Capital goods' and qualify for Modvat credit entitlement. Clause (c) makes moulds and dies, generating sets and weigh bridges used in the factory of the manufacturer as capital goods and thus qualify for availing Modvat credit. The goods enumerated in Clause (c) need not be used for producing the final product or used in the process of any goods for the manufacture of final product or used for bringing about any change in any substance for the manufacture of final product and the only requirement is that the same should be used in the factory of the manufacturer. Thus, it can be seen that the language used in the explanation is very liberal.

(3.) FROM the above it is seen that the capital goods unlike the inputs can be used in the factory of the manufacture at any stage. It is not necessary that they should be used at the time of manufacture itself like inputs.