TMI Blog2012 (12) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar, JJ. REPRESENTED BY : Shri Alok Arora, Advocate, for the Appellant. Shri S.R. Meena, AR, for the Respondent. [Order per : Rakesh Kumar, Member (T) (Oral)]. The facts leading to this appeal are, in brief, as under :- 1.1 Appellant are manufacturer of Sugar chargeable to central excise duty. The period of dispute in this case is from November, 1994 to August 1995 when they availed Modvat credit of central excise duty paid on inputs and capital goods as per the provisions of Central Excise Rules, 1944. Assistant Commissioner, vide order-in-original dated 17-4-1997 - (a) Disallowed modvat credit of Rs. 48,14,702/- on various items of capital goods on the ground that the items are not covered by the definition of capital goods , as given in Rule 57Q of Central Excise Rules, 1944 and disallowed Modvat credit of Rs. 4,99,229/- on the ground that credit has been taken without any valid documents; and (b) Ordered the recovery of the above credit from the appellant. The matter travelled upto the Tribunal, where it was disposed of vide Final Order No. A/551/2001-NB (DB), dated 29-6-2001 by which while the modvat credit demand of Rs. 4,99,229/- was uphe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mand the matter back to the original adjudicating authority to follow the earlier order of the Tribunal referred (supra) and to verify the invoices and adjudicate the order afresh . 1.3 In third round of de novo adjudication proceedings, the Deputy Commissioner, vide order-in-original dated 7-12-2009, except for confirming the modvat credit demand of Rs. 4,99,229/- already upheld by Tribunal s Order No. A/551/2001-NB(DB) dated 29-6-2001 dropped the remaining demand including the demand of Rs. 20,71,103/- in respect of MS Angles, Channels, CTD Bars etc. use for erection of supporting structures by following the Tribunal s Order No. 2062/2005-SM, dated 5-12-2005. 1.4. The department filed a review appeal against the Deputy Commissioner s order and CCE (Appeals) vide order-in-appeal dated 27-8-2010 - (a) restored the modvat credit demand of Rs. 20,71,103/- in respect of structural steel items on the ground that the judgments of the Tribunal (Order No. 2062/2005-SM, dated 5-12-2005, 408/2008-SM, dated 15-1-2008 and 1005/2007-SM, dated 1-6-2007) mentioned in the Tribunal s order are not applicable to the definition of capital goods for the period in question i.e. Nov. 1994 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aded that the impugned order is not correct. 4. Shri S.R. Meena, the ld. Senior Departmental Representative, defended the impugned order by reiterating the findings of CCE (Appeals) in the impugned order and emphasized that the MS Angles, Channels, Sections, bars etc. used for fabrication and erection of supporting structures fixed to the earth are not covered by the definition of capital goods are given in Rule 57Q during the period of dispute. 5. We have carefully considered the submissions from both the sides and perused the records. 6. So far as modvat credit of Rs. 1,02,237/- and Rs. 42,065/- in respect of certain item of Chapter 84 and Chapter 73 of the Central Excise Tariff is concerned, from the perusal of the order in appeal dated 27-3-2010 of CCE (Appeals) and the earlier order in appeal dated 14-6-2004 of CCE (Appeals) in 2nd round of litigation, it is clear that there is no dispute about eligibility of these items for capital goods modvat credit. The dispute in respect of these items is on factual point as to whether the credit of these amounts had already been allowed by the Assistant Commissioner vide order dated 17-4-1997. According to appellant, invoices in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and their components, spare parts and accessories. The goods of chapter 73 were not mentioned in the new definition. The eligibility of capital goods modvat credit of M.S. angles, channels, sections, CTD bars etc. used for fabricating and erecting supporting structures for machinery has to be examined on the basis of definition of capital goods , as it stood during the respective period of dispute. 8. The judgments of the Tribunal (Order No. 2062/2005-SM dated 5-12-2005; 408/2008-SM, dated 15-1-2008 and 1005/2007-SM, dated 1-6-2007) referred to by the Tribunal in its Order No. 513/08-Ex., dated 18-7-2008 pertains to the period when the definition of capital goods covered the goods of certain specific tariff headings, their parts components and some other specific items and machinery and did not include the general expression - machines, machinery, plant, equipment Subsequently these judgments were overruled by Larger Bench judgment of the Tribunal in case of Vandana Global Ltd. v. CCE, Raipur reported in 2010 -TIOL-624-CESTAT Del. LB = 2010 (253) E.L.T. 440 (Tri. - LB) wherein it was held that MS Angles, channels, bars, plates etc. used of erecting supporting structures ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
