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2015 (11) TMI 711 - CESTAT CHENNAI

2015 (11) TMI 711 - CESTAT CHENNAI - TMI - Availment of cenvat credit - inputs such as OPC cement, MS plates, MS beam, MS Angle, MS channels, MS sheets, M.S. Flat, TMT Rod and TOR Rod which are used for the construction of their "Dry Process Cement Manufacturing Plant" - immovable property - Capital goods - Held that:- On an identical issue of the same appellant, this Tribunal in two different appeals had already allowed the appeals and the Revenue preferred C.M.As. against the Tribunal's order. .....

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I 661 - MADRAS HIGH COURT] on an identical issue had allowed the C.M.A. filed by the very same appellant. - immovability is not a criteria for denial of cenvat credit, we hold that appellants are eligible for cenvat credit on the capital goods used in "Dry Process Cement Manufacturing Plant". Accordingly, the impugned order is set aside - Decided in favour of assessee. - Appeal No.E/42/2008 - FINAL ORDER No.41506/2015 - Dated:- 3-11-2015 - Shri R. Periasami, Technical Member And Shri P.K. Choudh .....

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s. Appellant was issued with SCN dt. 22.8.2007 demanding irregular availment of cenvat credit on OPC cement, MS plates, MS beam, MS Angle, MS channels, MS sheets, M.S. Flat, TMT Rod and TOR Rod used for the construction of their "Dry Process Cement Manufacturing Plant". Since the said items were used in the said plant and the word "plant" is not defined as "Capital Goods" under Cenvat Credit Rules, the adjudicating authority denied the cenvat credit availed on the c .....

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for construction of "Dry Process Cement Manufacturing Plant" and the word 'plant' has not been defined in CCR as "capital goods". Ld. Advocate drew our attention to the copy of SCN. He submits that these items were used in the manufacture as capital goods for setting up of a cement plant. There was no allegation in the SCN that either structures were embedded to earth or immovable whereas the adjudicating authority in his order held that these were used for civil con .....

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by the Revenue was dismissed and had upheld this Tribunal's Final Order. He further submits that the Hon'ble High Court of Madras in a recent order on an identical issue of cenvat credit on MS rods, sheets, channels etc. in the appellant's own case reported in 2015 (321) ELT 209 (Mad.) allowed their appeal. He also relied on this Tribunal's Division Bench Final order No.40890/2014 dt. 16.9.2014 in the case of Dalmia Cements (Bharat) Ltd. Vs CCE Trichy where on an identical issue .....

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eads that the impugned order is liable to be set aside and their appeal may be allowed. 4. On the other hand, Ld. A.R reiterated the findings of the adjudication order and submits that the goods in question were used in construction of "Dry Process Cement Manufacturing Plant" which does not come within the definition of "capital goods" and the adjudicating authority has rightly denied the credit. 5. After hearing the submissions of both sides, we find that the short issue in .....

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as "capital goods" in the CCR. We find that on an identical issue of the same appellant, this Tribunal in two different appeals had already allowed the appeals and the Revenue preferred C.M.As. against the Tribunal's order. The Hon'ble Madras High Court in both the orders in the case of CCE Trichy Vs India Cements Ltd. 2014 (305) ELT 558 (Mad.), and CCE & Service Tax Vs India Cements Ltd. - 2014 (310) ELT 636 (Mad.) had dismissed the Revenue's appeals. The relevant par .....

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Cements 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 = 201 .....

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e fabrication of chimney would fall within the ambit of capital goods. In the face of this decision in the assessees own case there being no new circumstance or decision in favour or 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 (S.C.) (Saraswati Sugar Mills v. Commissioner of C. Ex., Delhi-III) is concerned, we do not think that, the said decision would be of a .....

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on components/parts , 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 Revenues 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 referri .....

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.M.P. No. 16107 of 2005 is also dismissed." 6. Further, we find, the Madras High Court by relying their own order reported in 2014 (310) ELT 636 (Mad.) again dismissed the C.M.A. filed by Revenue and upheld the Tribunal's order. The Hon'ble High Court in a recent decision reported in 2015 (321) ELT 209 (Mad.) on an identical issue had allowed the C.M.A. filed by the very same appellant. The relevant portion of this Hon'ble Madras High Court order is reproduced as under :- " .....

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