TMI Blog2015 (12) TMI 1263X X X X Extracts X X X X X X X X Extracts X X X X ..... sed above, I am of the view that the impugned order, is not sustainable - Decided in favour of assessee. - Appeal No. E/42110/2014 - FINAL ORDER No. 41714 / 2015 - Dated:- 18-11-2015 - Shri P.K. CHOUDHARY, Judicial Member For the Petitioner : Shri Venkatachalam, Adv., For the Respondent : Shri L. Paneer Selvam, AC (AR) ORDER The appellant M/s. Beekay Steel Industries Limited, No. 10 Kumaravadi Village, Madhuranthagam Taluk, Kancheepuram District, is aggrieved against the Order in Appeal No. 128/2014 (P) dated 02.07.2014, passed by the Commissioner (Appeals), has filed this appeal. 2. The brief facts of the case are that the appellants are manufacturers of Non-alloys and Alloys , Bright bars falling under the chap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reiterated the grounds of appeal and submitted that the Ld. Commissioner (Appeals) has passed the order without considering the arguments put-forth by the appellants and therefore, the impugned order is in violation of principles of natural justice. Since it is a nonspeaking order and hence abinitio void and liable to be quashed. He further submitted that the demand made in the first SCN dated 6/9/2010 is barred by limitation. He submitted that the first SCN has been issued subsequent to the appellants letter No. BSIL/F/VS/012/10-11 dated 24.08.2010, wherein it was categorically mentioned that the appellants have used the impugned goods as input for pass racking material catching in the roll which determines the shape of the final produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. AR Shri L. Paneer Selvam, AC, reiterated the findings of both the OIO and the OIA. He relied on the judgment in the case of Vikram Cement Vs. CCE, Indore 2009 (242) ELT 545 (Tri.-Del.), wherein the Tribunal held that the credit on welding electrodes used for repair and maintenance is not available as input. He further submitted that Boards Instruction No. 267/11/2010-CX dated 08.07.2010, wherein it has been clarified by the Board that the definition of capital goods is not inclusive and only the items covered under the definition and used in the factory of the manufacturer can be treated as capital goods. He submitted that since the appeal is devoid of any merits, the Commissioner (Appeals) has rightly upheld the order of the adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n favour of the assessee by the decision of the Apex Court in the case of C.C.E., Coimbatore v. Jawahar Mills Ltd., 2001 (132) E.L.T. 3 in which the earlier decision of the Supreme Court in the case of Indian Farmers Fertiliser Co-operative Ltd. v. C.C.E., Ahmedabad, AIR 1996 SC 2542, has been taken note of. Incidentally with regard to all these issues, the department has contended that the case of Jawahar Mills Ltd. - 1999 (108) E.L.T. 47 held in favour of the assessee has been taken on appeal by the department to the Supreme Court and the same is pending. Now the Supreme Court in 2001 (132) E.L.T. 3 decided the issue in favour of the assessee. 3. The Tribunal in the case of DSM Sugar Vs. CCE, Meerut (supra) is as under:- 6. As ..... X X X X Extracts X X X X X X X X Extracts X X X X
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