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2016 (3) TMI 1040

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..... tion should not be invoked. As in that situation, no malafide can be attributed on the part of the appellants so as to justify invoking the longer period of limitation. Therefore, on limitation also I find that the entire demand except ₹ 14,206 is beyond limitation. - Appeal No. E/1260/11, E/1641, 1642/12- Mum - - - Dated:- 18-1-2016 - MR. S.S. GARG, MEMBER (JUDICIAL) For the Petitioner : Shri Archit Agarwal, CA For the Respondent : Shri H.M. Dixit, AC(AR) ORDER The appellant has filed three appeals against Order-in-Appeal No. MI/AV/207/2011 dated 19.04.2011 Order-in-Appeal No. BK/37 49/2012 dated 02.08.2012 22.08.2012 passed by the Commissioner of Central Excise (Appeals), whereby the Commissioner (Appeals) has upheld the Order-in-Original and dismissed the appeal of the appellant. Since in all the three appeals the common question of law is involved, therefore all the three appeals are disposed of by a common order. For convenience, the facts of appeal no. E/1641/10 are taken. 2. Briefly the facts of the case are that the appellants are engaged in the manufacture of excisable goods namely bulk drugs classified under Chapter 29 of Centr .....

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..... the tanks and vessels are a requirement for manufacture of the final product. The ld. Counsel further referred to definition of capital goods as well as input as contained in Rule 2(a) and Rule 2(k) of CCR 2004. He also submitted that the definition of the capital goods does not require that the capital goods should be used in the process of manufacturing. The only condition is that capital goods should be used in the factory of manufacturer. He also submitted that as per explanation (2) of Rule 2k which contains the definition of input it is very clear that the input includes the goods which are used in the manufacture of capital goods which are used within the factory of manufacture. He further submitted that in appeal no. E/1260/2011, the Commissioner (Appeals) vide Order-In-Appeal No. M-I/AV/207/2011 dated 19.04.2011 has observed as follows: 10. The appellants have then contended that since the Explanation, which clarifies that the cement, angles, channels and other items used for construction of factory sheds/buildings/constructions were excluded from the purview of the definition of inputs , was added only from 07.07.2009, any credit availed prior to that da .....

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..... otification itself and seeks to clarify existing provision. Even, if the new provision is added then it will be new amendment and cannot be treated to be clarification of particular thing or goods and/or input and as such, the amendment could operate only prospectively. In our opinion, the view taken by the Tribunal is based on conjectures and surmises as the Larger Bench of the Tribunal used the expression that intention behind amendment was to clarify. The coverage under the input from where this intention has been gathered by the Tribunal has not been mentioned in the judgment. There is no material to support that there was any legislative intent to clarify any existing provision. For the same reason, as mentioned above, the decision of the Apex Court in Sangam Spinners Limited Vs Union of India and others, reported in (2011) 11 SCC 408 =2011-TIOL-31-SC-CX would not be applicable to the facts of the instant case. Further the Hon ble Calcutta High Court in the case of M/s. Surya Alloy Industries Ltd. reported in 2014 (305) ELT 47 (Cal.) in para 8 has observed as follows: 8. The foundation of the order, passed by the Tribunal, is laid upon the judgment of the Larger Bench, .....

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..... dgment of M/s. Megafine Pharma Pvt. Ltd. 2014-TIOL-1312-CESTAT-AHM wherein this Tribunal has observed as under:- 3. Heard both sides and perused the case records. It is observed from the annexure to the show cause notice dt. 23.12.2009 that the demand period is from June 2006 to April 2008 and the issue involved is admissibility of Cenvat Credit on doors, false ceiling, compactor for document keeping, sheets for roofing, flooring for finished goods storage area, tube light fittings, etc. Appellant claimed the credit of these items as capital goods under Rule 2(a)(A) of the Cenvat Credit Rules, 2004. The issue of admissibility of Cenvat Credit on certain items and support structures was the subject matter of litigations between the manufacturers and the department. Conflicting views were being expressed by various courts as claimed by the appellant before the first appellate authority. The issue on admissibility of such items was finally decided by the Larger Bench in the case of M/s. Vandana Global Limited Vs. CCE, Raipur (supra). In the realm of conflicting interpretations given by various benches of CESTAT and other courts, it cannot be held that there was any suppression / m .....

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..... d CENVAT Credit on all these items being part of the capital goods whereas the revenue has declined to accept them as capital goods. Further, if you see the explanation 2 annexed with the definition of input under Rule 2k, I find that the Input includes goods used in the manufacture of capital goods which are further used in the factory of the manufacturer. Further, I find that the Larger bench in case of M/s. Vandana Global Limited (Supra) wherein the explanation was held to be clarificatory and did not change the definition of input, was held to be wrong by the two judgments of two different High Courts as reported supra wherein the Hon'ble High Courts have categorically held that there is nothing on record to suggest that in the Amending Act that amendment made in explanation 2 was clarificatory in nature. Further, I find that this bench of the Tribunal in M/s. Lloyds Metals and Engg Ltd. has held that in such circumstances the appellants are entitled to CENVAT Credit on the items in dispute during the impugned period, which has been used in setting up the capital goods by referring the decision of apex court in the case of Rajasthan Spinning Weaving Mills 2010 (255) .....

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