- (1.) The appeal by the Revenue arises from an order of the CESTAT, dated 22 January, 2014. The following question of law has been formulated by the Revenue. "Whether the CESTAT has erred in holding that extended period of limitation is not available without ascertaining the presence of the ingredients specified in Section 11A(4) of the Central Excise Act, 1944." A notice to show cause was issued to the assessee on 15 March, 2005 by the Additional Commissioner, Customs and Central Excise, Meerut-II. The allegation therein was that between 30 December, 2000 and 31 December, 2001, the assessee had availed of Cenvat credit in the amount of Rs. 21,33,434/- in respect of "staying and structural material" falling under Chapter/Heading No. 7308.90 of the Central Excise Tariff Act claiming them to be capital goods. The assessee had also availed of Cenvat credit in the amount of Rs. 49,802/- on Welding Electrodes under Chapter 8311.10 from 1 March, 2001 and 31 March, 2001. The total Cenvat credit of Rs. 21,83,236/- was, therefore, availed of. The allegation was that the items on which the Cenvat credit was availed of were not capital goods and hence the credit had been wrongly availed of. The extended period of limitation was sought to be applied on the ground that despite a letter of the Superintendent dated 31 October, 2001 and reminders dated 24 December, 2001 and 16 March, 2002, the assessee had failed to submit the requisite statement and it appeared that it had intentionally failed to file the return to avail inadmissible Cenvat credit.
(2.) The Adjudicating Officer, in the order dated 17 October, 2005, held as follows: "I observe that the party availed credit amounting to Rs. 21,33,434.00 on staying & structural material of chapter subheading 7308.90 claiming them as capital goods. The trade name of the structural itself suggests that they are construction/fabrication material. I find that the party in their defence submission has admitted that the material has been used for fabrication. I further observe that the issue of eligibility of Modvat credit on structural material has been squarely dealt with by the Hon'ble Tribunal in DSM Sugar Mills v. CCE, Allahabad,2002 147 ELT 570. The Tribunal applied the ratio of Malvika Steel case, wherein it has been held that steel structure used in erecting and fabrication machinery is building material and not capital goods and thus denied the benefit of Modvat in respect of structural material. I, therefore, hold that benefit of Modvat on this structural material is not available to party. The above contention gets further strength from the decision of the Tribunal in CCE, Indore v. LG Hotline CPT Ltd.,2004 176 ELT 443 wherein steel structures have been held as not part/component of the machine and therefore, not eligible for the benefit of capital goods credit. I further observe that the party has raised the issue of limitation and argued that the demand is time barred on the ground that they had filed declaration u/r 57T(1) and 57G on 8-6-2000 & 6-3-2000 respectively. I find that the party has not mentioned Structural material in any of the declarations filed. The demand on the same is therefore not hit by limitation."
(3.) The Commissioner (Appeals) dismissed the appeal with the following observations: "As regards to contention of the appellant that demand in the present case is barred by limitation. I find that the observation made by the adjudicating authority are observe from the relevant records that they had filed Mod vat declarations under Rule 57T(1) of erstwhile Central Excise Rules, 1944 on 6-3-2000 and 8-6-2000. Nevertheless, in none of the said declaration "Structural Material" was declared for the purpose of availing credit. Thus the party suppressed this material fact from the Department and therefore, cannot take the plea of demand being hit by limitation.";