TMI Blog2014 (7) TMI 881X X X X Extracts X X X X X X X X Extracts X X X X ..... Miscellaneous Appeal No.1265 of 2014 - - - Dated:- 10-7-2014 - R. Sudhakar And G. M. Akbar Ali,JJ. For the Appellant : Mr. K. Mohanamurali Standing Counsel JUDGMENT (Judgment of the Court was delivered by G. M. Akbar Ali,J.) This Civil Miscellaneous Appeal has been filed under Section 35-G of the Central Excise Act, 1944 challenging the order dated 08.05.2013 made in Final Order No.40179 of 2013 on the file of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), South Zonal Bench, Chennai. 2. The substantial question of law raised before this Court is as follows: Whether the Tribunal is correct in holding that structural steel items viz., M.S.Plates, Angles, Channels and HR Sheets used for civil constru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal, while allowing the appeal, followed the earlier order of this Court and the law laid down in the case of Commissioner of Central Excise, Jaipur V. Rajasthan Spinning Weaving Mills Ltd., reported in 2010 (255) ELT 481) and in paragraph Nos.7 and 8, held as follows: 7. In the present case, it is seen that the items in question were used in the erection of various machineries such as, - new additional Electrostatic Precipitator for raw mill project, additional fly ash handling system, MMD crusher etc. for the Dry Process Cement Manufacturing Plant. It is evident that MS Angles, MS Beams, MS Channels etc. were used in the erection of machineries it become component of the same, which are integral part of Dry Process Cement Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S channels, steel plants etc. as capital goods used for erection of chimney for diesel generating set. The findings of the Commissioner that these are structures fixed to earth with concrete foundations and are immovable appears to be beyond the scope of the show-cause notice. So, the case of M/s.Triveni Engineering Industries Ltd. (supra) as relid upon by the learned AR is not applicable in the present case. 6. Aggrieved by the order of the Tribunal, the Revenue has preferred the present appeal. 7. Learned Standing Counsel appearing for the Revenue heavily relied upon the decision reported in 2011-TIOL-73-SC-CX (Saraswati Sugar Mills V. Comissioner of Central Excise, Delhi - III) in Civil Appeal No.5295 of 2003 dated 02.08.2011. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el plates and M.S.Channels used in the fabrication of chimney would fall within the ambit of capital goods . In the face of this decision in the assessee's own case there being no new circumstance or decision in favour of the Revenue, we do not find any good ground to take a different view herein too. 10. As far as the reliance placed by the Revenue on the decision reported in 2011(270) E.L.T.465 (SC) (Saraswati Sugar Mills V. Commissioner of C.Ex., Delhi-III) is concerned, we do not think that the said decision would be of any assistance to the Revenue, considering the factual finding by the Tribunal therein in the decided case that the machineries purchased by the assessee were machineries themselves. Thus, after referring to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the decision reported in 2011-TIOL-73-SC-CX (Saraswati Sugar Mills V. Comissioner of Central Excise, Delhi - III) in Civil Appeal No.5295 of 2003 dated 02.08.2011 is distinguishable on facts. This Court applied the principles laid down in the decision reported in 2010 (255) E.L.T.481 (Commissioner of Central Excise Jaipur V. Rajasthan Spinning Weaving Mills Ltd.) and held that the Tribunal was justified in allowing the assessee's contention in respect of the very same assessee. 9. The present appeal is also in respect of the very same assessee and therefore we find no distinguishable fact or issue contrary to the earlier decision of this Court. The Tribunal has also found that the assessee has satisfied the user test in the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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