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2017 (10) TMI 793 - AT - Central ExciseCENVAT credit - capital goods - M.S. Channels/ M.S. Plates/Joists/CTD bars/TMT bars and cement, used for construction of foundation and structures of capital goods such as pre-heater towers, raw mill house, storage tanks, clinker silo, factory buildings, roads/drains and non plant buildings - Department however took the view that such foundations and structures are not capital goods - Denial of credit on the impugned items by the adjudicating authority has been done primarily relying on the ratio of Vandana Global Limited [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)] and the Board circular No. 276/110/96-3TRU, dated 02.12.1996. Held that: - the said legal position by Ld. adjudicating authority has been over-taken by subsequent judgments of higher forums - in a recent judgment of the Hon’ble High Court of Madras in the case of Thiru Arooran Sugars, Thirumandakudi and Dalmia Cements (Bharat) Limited [2017 (7) TMI 524 - MADRAS HIGH COURT], relying upon their earlier judgments and that of the Hon'ble Apex Court in the case of Saraswati Sugar Mills vs. CCE, Delhi-III [2011 (8) TMI 4 - SUPREME COURT OF INDIA], it has been held that M.S. structural which support the plant & machinery should get the benefit of cenvat credit. The disputed credit on various appeals, having been availed before the amendment to rule 2(k) of Cenvat Credit Rules, 2004, w.e.f. 07.07.2009, cannot sustain and will have to be set aside which we hereby do - appeal allowed. Penalties - Held that: - it cannot be disputed that the issue per se was in litigation and the same was settled only by the judgments - penalties set aside. Appeal allowed - decided in favor of appellant.
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