TMI Blog2016 (12) TMI 1377X X X X Extracts X X X X X X X X Extracts X X X X ..... tinguished, the entire foundation of the impugned order gets demolished - Cenvat credit is admissible on structural steel in light of the above referred judgments - the limitation aspect ignored - since credit allowed, penalty set aside. Credit allowed - appeal allowed - decided in favor of assessee. - E/994/11, E/1069/11 - A/88347-88348/16/SMB - Dated:- 4-7-2016 - Mr. Ramesh Nair, Member (Judicial) Shri.Roshil Nichani, Advocate for the Assessee Shri. N.N. Prabhudesai, Superintendent (A.R.) for the Revenue ORDER These appeals of the Assessee and Revenue are directed against Order-in- Appeal No. RT/14/LTU/MUM/2011 dated 31/3/2011passed by the Commissioner (Appeals) Central Excise Service Tax, LTU, Mumbai, whereby Ld. Commissioner(Appeals) except allowing Cenvat credit of ₹ 18,432/- upheld for rest demand of the Cenvat credit, penalty imposed vide Order-in-Original was set aside. 2. The fact of the case is that the assessee have availed Cenvat credit during the period June, 2004 to November, 2008 for ₹ 14,69,138/- on structural items such as M.S. structures, Plate, Flat, Angles, Channels, Bars and beam etc, falling under Chapter N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the larger bench, the issue involved is of interpretation of law. Therefore in such nature of cases extended period of demand cannot be invoked. He further submits that in the present case appellant have been submitting Cenvat register alongwith monthly returns to the Jurisdictional departmental officers, for this reason also extended period cannot be invoked. He placed reliance on the following judgments: (a) Commissioner of Central Excise Vs. M/s. Reliance Industries Ltd[2015-TIOL-363-HC-MUM-CX] (b) Reliance Industries Ltd. Vs. Commissioner of Central Excise, Mumbai[2013-TIOL-1057-CESTAT-MUM] (c) Union of India Vs. Bharat Aluminium Co. Ltd. [2012 (26) S.T.R. 101(Chhttisgarh)] (d) Jaiprakash Industries Ltd. Vs. Commissioner of C. Ex. Chandigarh[2002(146) ELT 481 (S.C.)] (e) Mentha Allied Products Ltd Vs. Commissioner of C. Ex. Meerut[2004(167) ELT 494(S.C.)] He submits that in view of the above decisions of Hon ble Supreme Court and High Courts demand is clearly time bar. 4. On the other hand, Shri. N.N. Prabhudesai, Ld. Superintendent (A.R.) appearing on behalf of the Revenue submits that as per the Larger Bench deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mic Zone Ltdvs. CCE, Cus [2015(39) S.T.R. 726(Guj)], Hon ble of Gujarat High Court of Gujarat made clear that amendment which is effective from 7/7/2009 is not clarificatory in the nature. If this is so then credit on the structural steel is undoubtedly admissible for the period prior to 7/7/2009. In the present case the period involved is June, 2004 to November 2008 therefore in view of the Hon ble Gujarat High Court judgment in case of Mundra Ports Special Economic Zone Ltd(supra) credit is admissible. I have gone through other judgments which were relied upon by the Ld. Counsel and find that various High Courts consistently taken the view that the Cenvat credit on structural steel is admissible. Some of the Judgments relied upon by the Ld. Counsel with operative portion of the order are reproduce below: (a) India Cements Ltd 9 . It is not in dispute that the impugned goods were used for fabrication of structurals to support various machines like crusher, kiln, hoopers, etc., and that without these structurals, the machinery could not be erected and would not function. 10 . In the case of Commissioner of Central Excise, Jaipur v. Rajasth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions and are immovable appears to be beyond the scope of the show cause notice. So, the case of M/s. Triveni Engineering Industries Ltd. (supra) as relid upon by the learned AR is not applicable in the present case. 11 . As far as the reliance placed on the decision reported in 2011-TIOL-73-SC-CX = 2011 (270) E.L.T. 465 (S.C.) (Saraswati Sugar Mills v. Commissioner of Central Excise, Delhi - III) in Civil Appeal No. 5295 of 2003, dated 2-8-2011 by the learned Standing Counsel appearing for the Revenue is concerned, we find that this Court had earlier considered the case of the assessee in two similar cases of the previous assessment years in C.M.A. No. 1301 of 2005, dated 31-12-2012, where a reference was made to an order passed earlier in respect of the very same assessee. While dismissing the appeal filed by the Revenue, the Division Bench of this Court held as follows : 8. Even though learned standing counsel appearing for the Revenue submitted that the judgment in the assessee s own case reported in AIT-2011-358-HC (The Commissioner of Central Excise v. M/s. India Cements Limited) had been appealed against, as of today, there are no details; in any event, the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions. We do not think that this would in any manner prejudice the case of the Revenue, given the fact that on the identical set of facts, the assessee s own case was considered by this Court and by following the decision reported in 2010 (255) E.L.T. 481 (Commissioner of Central Excise, Jaipur v. Rajasthan Spinning Weaving Mills Ltd.), the Revenue s appeal was also rejected. In the circumstances, this Civil Miscellaneous Appeal is dismissed. No costs. Consequently, C.M.P. No. 16107 of 2005 is also dismissed. 12 . From a perusal of the above said judgment, it is seen that there is no change in the circumstance and this Court had already considered the issue and held that the decision reported in 2011-TIOL-73-SC-CX = 2011 (270) E.L.T. 465 (S.C.) (Saraswati Sugar Mills v. Commissioner of Central Excise, Delhi - III) in Civil Appeal No. 5295 of 2003, dated 2-8-2011 is distinguishable on facts. This Court applied principles laid down in the decision reported in 2010 (255) E.L.T. 481 (Commissioner of Central Excise, Jaipur v. Rajasthan Spinning Weaving Mills Ltd.) and held that the Tribunal was justified in allowing the assessee s contention in respect of the very same assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod. However, the substantial question of law raised is whether the Tribunal is correct in allowing Modvat credit in respect of iron and steel products falling under Chapter 73 which are used as structural support to plant and machinery. The said question was considered by us in CMA No. 1265 of 2014 by order dated 10-7-2014. Reliance was placed in Rajasthan Spinning and Weaving Mills Limited cited supra, wherein the Apex Court has applied the user test in a case of M.S. Angles, Beams and Channels used in the erection of machineries and held that it would become component of the same. Therefore, we are of the considered view that credit cannot be denied on the ground that the goods are not covered under the definition of capital goods under Rule 57Q as it stood before 16-3-1995. 12 .The case on hand is squarely covered by the decision reported in 2010 (255) E.L.T. 481 (Commissioner of Central Excise, Jaipur v. Rajasthan Spinning and Weavinig Mills Ltd.) and the goods used by the assessee are falling under the capital goods, eligible for credit. 13 . For the reasons stated above, the appeal fails and the questions of law is answered in favour of assessee and the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also ammonia which is used elsewhere in the manufacture of fertilizers . The off-site plants were held to be part of the process of the manufacture of urea. Relying upon the phraseology used in the exemption notification, it was held that there was no good reason why the exemption should be limited to the raw naphtha used for producing urea that is utilized directly in the urea plant since the notification only required that the ammonia should be used in the manufacture of fertilizers and not that it should be used directly in the manufacture of fertilizers. The Court said that : The exemption notification must be so construed as to give due weight to the liberal language it uses. The ammonia used in the water treatment, steam generation and inert gas generation plants, which are a necessary part of the process of manufacturing urea, must, therefore, be held to be used in the manufacture of ammonia and the raw naphtha used for the manufacture thereof is entitled to the duty exemption. 6. The Tribunal has held that the cement, steel plates and bars in respect of which modvat credit has been availed of by the respondent no. 2 have been used for providing support to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, activities relating to business, such as accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, and security, inward transportation of inputs or capital goods and outward transportation upto the place of removal. 7. It is not disputed that jetty was constructed and input credit was claimed on cement and steel. The aforesaid definition of Rule 2(k) was applicable and Explanation 2 did not provide that cement and steel would not be eligible for input credit. According to learned counsel for the appellant, the appellant is not manufacturer and, therefore, the provisions Explanation 2 of Rule 2(k) would be applicable only to the factory and manufacturer. The appellant is neither having any factory nor he is manufacturer. The appellant is a service provider of port. We need not go into this question as to whether the appellant is a factory or manufacturer or service provider in view of the fact that it is not disputed by Mr.Y.N.Ravani, learned counsel appeari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which come into force on 7.7.2009 was clarificatory amendment as there is nothing to suggest in the Amending Act that amendment made in Explanation 2 was clarificatory in nature. Wherever the legislature wants to clarify the provision, it clearly mentions intention in the notification 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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