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2016 (3) TMI 433 - CESTAT MUMBAI

2016 (3) TMI 433 - CESTAT MUMBAI - TMI - Disallowance of Cenvat credit on Wires and Cables falling under Chapter 85 and on refractory falling under Chapter 69 - isallowance of the credit on the aforesaid items on the ground that these are not Capital goods in terms of definition of Capital goods - Held that:- The wires and cables being covered under Chapter 85 is specified under sub clause (A)(i) of Clause (a) of Rule 2 of Cenvat Credit Rules, 2004 and refractory and refractory material the cove .....

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at only on the basis that two addresses mentioned on the invoices whether the Capital goods received in the factory and used in the factory, however no such exercise was carried out by the Revenue and issue was not raised in the show cause notice, even adjudicating authority also was not given any finding on this issue. Thus agree with the Ld. Counsel that this fresh issue raised first time in the impugned order and the same was not raised in the show cause notice. The appellant was not put to n .....

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Petitioner : Shri. Vinay Sejpal, Advocate For the Respondent :: Shri. Sanjay Hasija, Superintendent (A.R.) ORDER PER : RAMESH NAIR This appeal is directed against Order-in-Appeal No. SB/276/TH-/10 dated 13/12/2010 passed by the Commissioner(Appeals) wherein Ld. Commissioner(Appeals) upholding the Order-in-Original No. 15/2009/10 dated 28/8/2009 rejected the appeal of the appellant. 2. The fact of the case is that the appellant availed Cenvat credit on Wires and Cables falling under Chapter 85 an .....

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not capital goods but also on the ground that invoices of the Wires and Cables indicate the address of the applicant as well as applicants site and therefore it was contended that Wires and Cables were not received in the appellants factory. Aggrieved by the impugned order, the appellant is before me. 3. Shri. Vinay Sejpal, Ld. Counsel for the appellant submits that the issue whether Wires and Cables and refractory are capital goods or otherwise, he submits that Wires and Cables falling under .....

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s raised first time by the Ld. Commissioner (Appeals) and he suo moto given findings that due to mention of two addresses it cannot be said that capital goods were received in the appellants factory. He placed reliance on following judgments: (a) Reckitt & Colman of India Ltd. Vs. Collector of Central Excise [196(88) ELT 641 (S.C.)] (b) Hindustan Polymers Co. Ltd Vs. Collector of C. Ex., Guntur[1999(106) ELT 12(S.C.)] 4. On other hand, Shri. Sanjay Hasija, Ld. Superintendent(A.R.) appearing .....

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the wires and cables falling under Chapter heading 85 and refractory falling under Chapter heading 69 are capital goods or otherwise, I reproduce the definition of Capital goods : Rule 2. Definitions. - In these rules, unless the context otherwise requires,- (a) "capital goods" means:- (A) the following goods, namely:- (i)all goods falling under Chapter 82, Chapter 84, Chapter 85, Chapter 90, heading No. 68.05 grinding wheels and the like, and parts thereof falling under heading 6804 .....

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gistered in the name of provider of output service for providing taxable service as specified in sub-clauses (f), (n), (o), (zr), (zzp), (zzt) and (zzw) of clause (105) of section 65 of the Finance Act; On plain reading of the above definition of the Capital goods, it is observed that the wires and cables being covered under Chapter 85 is specified under sub clause (A)(i) of Clause (a) of Rule 2 of Cenvat Credit Rules, 2004 and refractory and refractory material the covered under sub clause (v) .....

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at two addresses mentioned on the invoices whether the Capital goods received in the factory and used in the factory, however no such exercise was carried out by the Revenue and issue was not raised in the show cause notice, even adjudicating authority also was not given any finding on this issue. I agree with the Ld. Counsel that this fresh issue raised first time in the impugned order and the same was not raised in the show cause notice. The appellant was not put to notice on this issue theref .....

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tarch. Having come to the conclusion that the said product was not a preparation based on starch, the Tribunal should have allowed the appeal. It was beyond the competence of the Tribunal to make out in favour of the Revenue a case which the Revenue had never canvassed and which the appellants had never been required to meet. It is upon this ground alone that the appeal must succeed. In case of Hindustan Polymers Co. Ltd (supra) it was held as under 6. While we appreciate the Tribunal s desire t .....

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