TMI Blog2017 (10) TMI 1586X X X X Extracts X X X X X X X X Extracts X X X X ..... UPREME COURT] . In the impugned order, the CESTAT, SZ, Chennai, by only relying upon the Larger Bench decision of the VANDANA GLOBAL LTD. VERSUS CCE [ 2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)] , has dismissed the appeal filed by the assessee, rejecting the contention that the Structurals and allied materials claimed to be parts of the capital goods/inputs capable of claiming Cenvat credit. Since the issue raised before the Tribunal ( CESTAT ) ought not to have been decided only on the basis of the decision of the Larger Bench of the CESTAT in Vandana Global's case, and in view of number of decisions of the Division Bench of this Court, which is the jurisdictional High Court, the impugned Judgment of the CESTAT, is liable to be interfered with. The substantial questions of law raised herein by the assessee, is answered in favour of the assessee and against the Revenue - Appeal allowed - decided in favor of appellant. - CIVIL MISCELLANEOUS APPEAL NO.2629 OF 2012 AND M.P.NO.1 OF 2012 - - - Dated:- 11-10-2017 - THE HONOURABLE MR. JUSTICE S. MANIKUMAR And THE HONOURABLE MR. JUSTICE R. SURESH KUMAR For the Appellant : Mr.Rahul Balaji For the Respondent : Ms.R.Hem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an appeal before the Honourable Supreme Court and subsequently, had withdrawn the same with liberty to approach this Court and accordingly, this present Civil Miscellaneous Appeal has been filed by invoking Section 35G of the Central Excise Act, 1944. 8. Heard Mr.Rahul Balaji, learned counsel appearing for the assessee and Ms.R.Hemalatha, learned Senior Central Government Standing Counsel appearing for the Revenue. 9. At the outset, the learned counsel appearing for the assessee would submit that, the issue raised in this appeal, is fully covered by a number of decisions of this Court by various Division Benches and the latest one being the case in C.M.A.Nos.3814 of 2011 and 2695 and 2696 of 2012 in the matter of M/s.ThiruArooran Sugars v. Customs, Excise and Service Tax Appellate Tribunal, Chennai, vide order dated 10.07.2017. 10. The instant appeal had been admitted on 17.09.2012 with the following substantial questions of law: (a) Whether the Tribunal erred in holding the appellant ineligible to Cenvat Credit under Rule 57AA of the Central Excise Rules, 1944, for goods used in the machineries installed in their factory for production, as 'capital goods'? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnative, it is submitted by both the Assessees, i.e., TAS and DCBL, that the said structurals, cement, and iron and steel, would fall within the definition of Rule 2(k), read with Explanation 2 of the 2004 Rules; which, therefore, is the other issue, that is, required to be considered by us. 14.Before the Division Bench, the learned counsel appearing for the assessee, had relied upon the following Judgments, which have been noted at Para 16.5 of the Judgment, which is extracted hereunder: 16.5. In support of his submissions, learned counsel relied upon the following judgments: (i) CCE V. Rajasthan Spinning and Weaving Mills, 2010 (255) ELT 481 SC (ii) CCE V. India Cements Ltd. 2012 (285) ELT 341 (Mad) (iii) CCE V. India Cements Ltd. 2014 (310) ELT 636 (Mad) (iv) CCE V. India Cements Ltd. 2014 (321) ELT 209 (Mad) (v) Dalmia Cements (Bharat) Ltd. V. CCE 2016 (341) ELT 102 (Mad) (vi) ThiruArooran Sugars V. CCE 2015 TIOL 1734 -HCMad. (vii) Mundra Ports Special Economic Zone Ltd. V. CCE Cus 2015 (39) STR 726 (Guj.) 15.After having taken note of the said factor referred by the appellant (assessee) side, the Division Bench has given elaborate discussio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pinning Weaving Mills 2010 (255) ELT 481, held that the aforesaid items will fall within the scope and ambit of the definition of 'capital goods', set out in Rule 57Q. The observations made by the court in paragraph 7 and 8, being apposite, for the sake of convenience, are extracted hereafter: 7. As far as the Crane with accessories and Loader are concerned, there cannot be any difficulty in holding that they will come within the items of machinery or equipment used for production or processing of any goods for the manufacture of final products. As has been held by the Apex Court in Jawahar Mills Limited's case, the Rule makes it explicitly clear that the order of the Tribunal in dismissing the appeal preferred by the Revenue in respect of these two items and remitting the matter for fresh consideration in regard of the Bulldozer requires no consideration. As far as the other items, namely, Rebar Coils, CTD Bars, TOR Steel and Cement are concerned, as to whether they are capital goods or not, the Tribunal having regard to the law laid down by the Apex Court in Jawahar Mills's case, has liberally construed the above Rule and factually found that these are the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Jaipur V. Rajasthan Spinning Weaving Mills Ltd.), the Apex Court held that in view of the findings rendered by the Tribunal that the machineries were complete and having regard to the meaning of the expression components/parts , with reference to the particular industry in question, the Apex Court rejected the appeal filed by the assessee. 11. Thus going by the factual finding, which are distinguishable from the facts found by the Authorities below in the case on hand, we have no hesitation in rejecting the Revenue's appeal, thereby confirming the order of the Tribunal. 12. Learned standing counsel appearing for the Revenue pointed out that the Tribunal had merely passed a cryptic order by referring to the earlier decisions. 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 dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent state of facts. ...... ...... 41.3. Therefore, to our minds, contrary to what Ms.Hemalatha has stated, the decision in the Saraswathi Sugar Mill's case would be distinguishable, as it dealt with an exemption notification. 42. On the other hand, Rajasthan Spinning and Weaving Mill's case, in our view, is the more opposite case, which can be applied to the matters at hand. The Court, in the said case was called upon to rule as to whether the Assessee in that case could avail of Modvat Credit in respect of steel plates and MS channels, i.e., structurals used in the fabrication of chimney, which, in turn, was used, as it appears, in the operation of the diesel generating set. and ultimately, the Division Bench of this Court in Thiru Arooran's case has concluded as follows: 43.1. To be noted, Hon'ble Mr.Justice D.K.Jain, (as he then was), was party to both the judgments rendered by the Supreme Court i.e., Rajasthan Spinning and Weaving Mills Limited as well as Saraswathi Sugar Mills Limited case. 43.2. Therefore, quite clearly, the two judgements referred to above cannot be read in the manner, as the Revenue is seeking to read them, that is, at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the learned counsel appearing for the assessee, the Division Bench, by order dated 25.07.2017, in C.M.A.No.2483 of 2016, has passed the following orders: 3.On this day, Ms.Cynthia Crishnan, learned Counsel for the second respondent produced a copy of the common order, made in C.M.A.Nos.3641 to 3643 of 2011, etc., batch. 4.While adverting to the rival submissions, a Hon'ble Division Bench of this Court, has answered similar substantial questions of law, now raised in the instant Civil Miscellaneous Appeal, in favour of the assessee and against the revenue. 5.Similar substantial questions of law, were also considered in Civil Miscellaneous Appeal Nos.3814 of 2011, 2695 and 2696 of 2012. 6.Following the above said two decisions, the instant Civil Miscellaneous Appeal is dismissed, answering the substantial questions of law, against the revenue. No costs. Consequently, the connected Miscellaneous Petition is closed. 20.Here also, in the impugned order, the CESTAT, SZ, Chennai, by only relying upon the Larger Bench decision of the CESTAT, in Vandana Global Limited v. CCE, Raipur [2010 (253) ELT 440], cited supra, has dismissed the appeal filed by the assessee, re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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