M/s. Hyundai Motor India Ltd. Versus Commissioner of GST & Central Excise, Chennai
Central Excise
2019 (2) TMI 1484 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 22-2-2019
Appeal No. E/504/2012 – Final Order No. 40371/2019
Central Excise
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical)
Shri M.N. Bharathi, for the Appellant
Shri B. Balamurugan, AC (AR) for the Respondent
ORDER
Per Bench
The facts of the case are that the appellants are inter alia manufacturers of cars. Pursuant to audit, it emerged that appellant had availed CENVAT credit on certain inputs like angles, channels and other items used for support of capital goods, in particular, hollow profiles and panels for use in paint shop. Department took the view that there cannot availment of CENVAT credit in respect of such items. Accordingly, proceedings were initiated against the appellant which culminated in an order dated 7.9.2012, (impugned order), w
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f the paint shop.
2.5 The adjudicating authority has relied upon the decision of the Larger Bench of the Tribunal in the case of Vandana Global Ltd. – 2010 (253) ELT 440 (Tri.LB) to conclude that input credit cannot be allowed in fabrication of items which are eventually embedded to earth. However, the said decision been overruled by the Hon'ble High Court of Chattisgarh as reported in 2018 (16) GSTL 462 (Chat.)
2.6 The ld. counsel submits that the issue has already been addressed and decided in favour of the appellant in a number of other judgments / decisions of High Court / Tribunal.
3. On the other hand, ld. AR Shri B. Balamurugan supported the findings in the impugned order. He further submits that the decision of the Vandana Global Ltd. by Hon'ble High Court of Chattisgarh has been appealed against by the department. Hence the matter is not settled.
4. Heard both sides.
5. We find ourselves in agreement with the ld. counsel that the matter in dispute is no longer res integra
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ase and held as follows :
“We do not find that amendment made in the Cenvat Credit Rules, 2004 which come into force on 7-7-2009 was clarificatory amendment as there is nothing to suggest in the Amending Act that amendment made in Explanation 2 was clarificatory in nature. Wherever the Legislature wants to clarify the provision, it clearly mentions intention in the notification itself and seeks to clarify existing provision. Even, if the new provision is added then it will be new amendment and cannot be treated to be clarification on particular thing or goods and/or input and as such, the amendment could operate only prospectively.”
6. That view has been quoted with approval by the Madras High Court in M/s. Thiruarooran Sugars v. Customs, Excise and Service Tax Appellate Tribunal (CMA 3814/2014 and connections) decided on 10-7-2017 [2017 (355) E.L.T. 373 (Mad.)] to conclude that the said amendment cannot be treated as clarificatory. M/s. Thiruarooran Sugars also considered the issue
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