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M/s. India Cements Ltd. Versus The Custom, Excise and Service Tax & The Commissioner of Central Excise,

2015 (3) TMI 661 - MADRAS HIGH COURT

Denial of CENVAT Credit - credit on MS Rod Sheets, M.S.Chennel, M.S.Plates, Flats etc. used in the fabrication of fly ash hooper, fly ash bin, fly ash handling system & kiln brick laying work to bold refractories - Held that:- there is no change in the circumstance and this Court had already considered the issue and held that the decision reported in [2011 (8) TMI 4 - SUPREME COURT OF INDIA ] (Saraswati Sugar Mills V. Comissioner of Central Excise, Delhi - III) is distinguishable on facts. This .....

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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, Excise and Service Tax Appellate Tribunal (CESTAT), South Zonal Bench, Chennai was admitted by this Court on the following substantial questions of law: "1. Whether in the facts and circumstances of the case .....

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dismissing the appeal?" 2. The appellant/assessee is a manufacturer of cement falling under Chapter 25 of the Central Excise Tariff Act. The assessee has been availing cenvat credit on inputs, input services and on capital goods which were utilized for payment of duty on their finished goods, viz., 'cement'. On verification of the accounts, the Department noticed that the assessee availed cenvat credit in respect on MS Rod, Sheet, MS Channel, MS Plate, Flat etc., Alleging the said .....

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mand 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 .....

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Court. 6. Learned counsel appearing for the assessee placed before this Court the decision in the case of Commissioner of Central Excise, Jaipur V. Rajasthan Spinning & Weaving Mills Ltd., reported in 2010 (255) ELT 481) to contend that the impugned goods are used in the erection of the capital goods and hence, the assessee is eligible for availing cenvat credit. 7. Learned Standing Counsel appearing for the Revenue heavily relied upon the decision reported in 2011-TIOL-73-SC-CX (Saraswati S .....

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d as capital goods in the Cenvat 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 Cent .....

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er 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 Manufacturing Plant. It is noted that Fly Ash handlish system is a pollution control equipment and particularly mentioned in 2(a)(A)(ii) of Rules, 2004. The allegation in the above show-cause notice that the Chapter Heading of these items were not covered under Rule .....

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BEC has clarified that all parts, components, accessories which are to be used with capital goods in serial (i) and (ii) of Rules 2(a)(A) and classifiable under any chapter heading are eligible for availment of CENVAT credit. A plain reading of serial (iii) cannot lead 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 refer .....

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e 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." 11. Asfar as the reliance placed on 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 by the learned Standing Counsel appearing for the Revenue is concerned, we find that this Court had earlier considered the case of the assessee .....

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ents Limited) had been appealed against, as of today, there are no details; in any event, the fact herein is that the Revenue does not controvert the facts found by the Assistant Commissioner that the impugned goods were used for fabrication of structurals to support various machines like crusher, kiln, hoppers, pre-heaters conveyor system etc. and that without these structurals, the machinery could not be erected and would not function. 9. In the decision reported in AIT-2011-358-HC (The Commis .....

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hin 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, .....

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with reference to the particular industry in question, the Apex Court rejected the appeal filed by the assessee. 11. Thus going by the factual finding, which are distinguishable from the facts found by the Authorities below in the case on hand, we have no hesitation in rejecting the Revenue's appeal, thereby confirming the order of the Tribunal. 12. Learned standing counsel appearing for the Revenue pointed out that the Tribunal had merely passed a cryptic order by referring to the earlier .....

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