TMI Blog2017 (4) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... ential benefit. - E/990/2008-EX[SM] - A/70301/2017-SM[BR] - Dated:- 21-3-2017 - Mr. Anil Choudhary, Member (Judicial) Shri Arun Pathak, (Advocate), for Appellant Shri D. K. Deb, Assistant Commissioner, (AR), for Respondent ORDER Per Anil Choudhary The present appeals are filed by the appellant, M/s Dalmia Sugars Ltd., against Order-in-Appeal passed by Commissioner of Central Excise Customs (Appeals), Lucknow. The issue in this appeal by the appellant-assessee is whether they are entitled to Cenvat credit on the cement used in the foundation of machineries erected which have been further used for manufacture of taxable or dutiable products. 2. The brief facts of the case are that the appellant is engaged in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods nor spare or component of the plant machinery. The appellant contested the Show Cause Notice by filing the reply, stating that during the period, they have undertaken expansion of Sugar Plant along with a new co-generation plant in their Sugar Mills. Accordingly, they purchased various plant and machinery items, equipments/ components and in the process of installation/erection, cement was utilized in the foundation work and supporting structure for erection of the machinery, without which the machinery cannot run and/or give outputs liable to duty. The Show Cause Notice was confirmed vide Order-in-Original No. 23/Additional Commissioner/LKO/2007 dated 03/09/2007 and penalty of ₹ 2,00,000/-was also imposed under Rule 15 of Cenva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the factory of production. Further, by virtue of explanation 2 in Rule 2(k), provides - input includes goods used in the manufacture of capital goods which are further used in the factory of manufacture. 4. The ld. Counsel urges that under the changed Rules definition, it is an admitted fact that Cement has been used inside the factory of production and without erection of plant and machinery, there can be no manufacture of dutiable goods. Accordingly, the impugned order be set aside and to hold appellant was entitled to Cenvat credit. He, further, relies on the ruling of Hon ble Karnataka High Court in the case of Commissioner of Central Excise, Bangalore-II Versus SLR Steels Ltd. reported at 2012 (280) E.L.T. 176 (Karnata ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of input have been enlarged. That Cement and Iron Steel used in supporting structure for erection of plant machinery are eligible as inputs. It is further held that inputs are not necessarily to be used in the manufacture of final products. An input may be used even in relation to manufacture of final product. In the facts and circumstances of this case, cement has been admittedly used in the erection of capital goods, being machinery, without which manufacture of dutiable goods is not possible. Accordingly, in terms of Final Order No. 71080-71081/2016 dated 18/11/2016 in Appeal No. E/1983-84/2008-EX[DB], the appeal is allowed with consequential benefits to the appellant, if any, in accordance with law. The impugned order is set aside. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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