TMI Blog2016 (3) TMI 615X X X X Extracts X X X X X X X X Extracts X X X X ..... ng period, hold without entering into the merits, that the demand for extended period, cannot be sustained. - Decided in favour of assessee - Ex Appeal No. 383/12 - Final Order No. A/70014/2016-SM - Dated:- 6-1-2016 - Anil Choudhary, Member (J) For the Appellant : Shri Rajesh Chibber, Adv For the Respondent : Shri Chatru Singh, Asstt Commr (AR) ORDER Per Anil Choudhary The appellant is a manufacturer of sugar molasses and rectified spirit as well as denatured spirit. This is an appeal against order in appeal dated 28/10/2011 passed by the Commissioner of Central Excise (Appeals), Meerut II. The appellant availed Cenvat credit of tax paid on inputs utilized for fabrication of machineries or capital goods. A show caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the said items were used in the fabrication of Digester Tank and its shell. The said Tank was used to treat the sludge used for production of biogas (exempt). Bio gas is utilised by mixing with bagasse to run the boiler for manufacture of excisable goods. Only for the reason that the intermediate product i.e. biogas is not taxable, it does not mean that the goods have been utilized in the manufacture of capital goods which is utilised in manufacture of output exempted from duty. It is admitted case that no biogas is cleared or removed by the appellant and all such processes are essential for carrying of the manufacturing activity of excisable goods. The SCN was adjudicated vide order-in-original dated 28/6/11 whereby the proposed demands ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the appellant urges that as the revenue have not filed appeal against order of Commissioner (Appeals), on the basis of finding in the appellate order that that is no element of fraud mis-statement, et cetera, the proviso to section 11A (1) is not attracted and accordingly, extended period is not invocable in this case. As the whole demand is for the extended period, the impugned order is fit to be set aside. He further points out that from the show cause notice itself, it is evident that the revenue was aware with the taking of credit by the appellant and they have also issued another show cause notice for the immediate preceding period June,2006 to June,2008 and as such in view of the ruling of Honourable Supreme Court in the case of Ni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dana Global has been distinguished by the Madras High Court and the Gujarat High Court and as such, is no longer good law. The Honourable High Court have held that when supporting structures are essential part of the machinery, in order to manufacture taxable output, the Cenvat credit is available. Further, in view of the finding already Commissioner (Appeals) that there is no element of concealment or contumacious conduct on the part of the appellant and the issue is wholly interpretational In nature, and also in view of the fact that the revenue also had information of taking of Cenvat credit in view of the earlier show cause notice for the preceding period, I hold without entering into the merits, that the demand for extended period, can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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