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2016 (11) TMI 866 - AT - Central ExciseCENVAT credit - goods namely pre-fabricated building and building structures - user test - reliance placed in the decision in the case of Vandana Global Ltd. Vs. CCE [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)] - Held that: - the cenvat credit was denied to the respondent relying on the decision of Vandana Global Ltd. holding that the explanation 2 to Rule 2(k) of the CCR, 2004 is clarificatory in nature and retrospectively applicable. The decision of the Larger Bench of this Tribunal in the case of Vandana Global Ltd. has been examined of the various Hon'ble High Courts and it has been held that it is not a good law. Further, in the case of Singhal Enterprises Pvt. Ltd. [2016 (9) TMI 682 - CESTAT NEW DELHI] this Tribunal held that the user test is to be applied for structural items used in the fabrication of support structures. In this case, the respondent has explained the use of the steel items used for pre-fabricated building and building structures. Therefore, by applying the user test, the respondent is entitled to avail the cenvat credit up to the period 07.07.2009. As the issue of availment of credit was in dispute during the period, therefore, no penalty is imposable in the facts and circumstances of the case. In result, the respondent is entitled to avail cenvat credit on the steel items during the period 01.01.2009 to 07.07.2009 and no penalty Imposable - appeal dismissed - decided against Revenue.
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