TMI Blog2015 (3) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... (7) TMI 12 - SUPREME COURT OF INDIA] (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. - Decided in favour of assessee. - Civil Miscellaneous Appeal No.347 of 2011 & M.P.No.1 of 2011 - - - Dated:- 6-3-2015 - R.Sudhakar And R.Karuppiah JJ For the Appellant : Mr.C.Saravanan For the Respondents : Mr.V.Sundareswaran JUDGMENT (Judgment of the Court was delivered by R.SUDHAKAR,J.) This Civil Miscellaneous Appeal filed under Section 35G of the Central Excise Act, 1944 challenging the order dated 25.10.2010 made in Final Order No.1126 of 2010 on the file of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hannel, MS Plate and Flat etc. on the ground that they are components, parts and accessories of the machineries and equipments. Rejecting the contention of the assessee, the Adjudicating Authority confirmed the demand of ₹ 1,09,909/- along with interest and penalty holding that the impugned goods would not fall under the definition of capital goods. Aggrieved by the said order of the Adjudicating Authority, the assessee preferred an appeal before the Commissioner (Appeals), who dismissed the appeal, thereby upheld the order of the Adjudicating Authority. 3. As against the said order of the Commissioner (Appeals), the assessee once again pursued the matter before the Tribunal. 4. The Tribunal after following the decision rend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Credit Rules, 2004. 8. Heard learned counsel appearing for the assessee and the learned Standing Counsel appearing for the Revenue and perused the materials placed before this Court. 9. It is not in dispute that the impugned goods were used for fabrication of structurals to support various machines like crusher, kiln, hoopers etc. and that without these structurals, the machinery could not be erected and would not function. 10. In the case of Commissioner of Central Excise, Jaipur V. Rajasthan Spinning Weaving Mills Ltd., reported in 2010 (255) ELT 481), relied on by the learned counsel appearing for the assessee, the Apex Court , while dealing with the issue in question, in paragraph Nos.7 and 8, held as follows: 7. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to a different conclusion either. 8. After considering the use of the goods in question, in our considered view, the present case is covered by the decision of the Hon'ble Madras High Court in appellant's own case as referred above. We have also noticed that the Hon'ble Supreme Court in the case of Rajasthan Spinning and Weaving Mills Ltd.(supra) as relied upon the Hon'ble High Court in the appellant's own case, allowed MODVAT credit on MS 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. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise V. M/s.India Cements Limited), pointing out to Rule 57Q and the interpretation placed by the Apex Court in the decision reported in 2010 (255) E.L.T.481 (Commissioner of Central Excise Jaipur V. Rajasthan Spinning Weaving Mills Ltd.) and in particular Paragraph Nos.12 and 13, wherein the Apex Court had applied the user test by following the Jawahar Mills's case, this Court held that steel 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Central Excise Jaipur V. Rajasthan Spinning Weaving Mills Ltd.) , the Revenue's appeal was also rejected. In the circumstances, this Civil Miscellaneous Appeal is dismissed. No costs. Consequently, C.M.P. No.16107 of 2005 is also dismissed. 12. From a perusal of the above said judgment, it is seen that there is no change in the circumstance and this Court had already considered the issue and held 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 Jaipu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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