TMI Blog2023 (6) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... of the judgment that had crystallised the issue by holding that such explanation, being not in the nature of proviso, can be considered to be operative only from the date of its insertion. On going through Annexure A of the show-cause notice and found that along with the items mentioned in the explanation some other items, as pointed out by learned Counsel for the Appellant, are also figuring in the said Annexure A but it would be practically imposable at our end to compute with accuracy and reference to invoices as to if confirmed demand includes also admissible credit of Rs.1,95,91,425/- for which while agreeing with the Appellant s claim that credits in respect of all items including the items explained in Explanation 2 are admissible to the Appellant for the period from February, 2008 to 07.07.2009, non-availability of credits, as indicated in Explanation 2, to the Appellant would be effective from 07.07.2009 to June 2010, which Appellant claims to have not availed while Commissioner confirmed the entire demand including the other credits admissible to the Appellant - it is considered proper that for this limited purpose appeal could be remanded to the Original Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment plants between the period 2008 and 2010, Appellant had used substantial quantity of steel items including Angles, Plates, Flats, Rounds, Square etc. as well as QST Bars, Parallel Flange Beams, TMT Rebars, Channels, Beams etc. for the purpose of fabricating capital goods and it had also procured number of capital goods, spares and components through which several capital goods such as cement mills, grinding media, silos, several conveyer systems, substation, truck loader, Wagon Tippler etc. were fabricated for the purpose of manufacture of cements as those were essential capital goods in such manufacturing process. Appellant accordingly had availed CENVAT Credit on those iron steel items as well as capital goods, used for manufacturing of cement, in terms of CENVAT Credit Rules, 2004. Additionally, it had availed CENVAT Credit on inputs/capital goods used as concrete railway sleeper, railway track, wagon loading machine etc. and obtained certificate of Chartered Engineer to the effect that iron steel were used for setting up of plant machinery in the cement manufacturing units. Owing to change of definition of inputs service by way of insertion of Explanation 2 to Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Counsel for the Appellant Mr. Rajesh Ostwal had rightly drawn our attention to para 5, 6 8 of the judgment that had crystallised the issue by holding that such explanation, being not in the nature of proviso, can be considered to be operative only from the date of its insertion. For better clarity we reproduce the relevant portion of those paras below:- 5. The impugned order of the Tribunal had come up for consideration before different High Courts either cited as precedent or as relied upon by the Tribunal in different other matters. The Gujarat High Court in Mundra Ports Special Economic Zone Ltd. - 2015 (39) S.T.R. 726 (Guj.) referred to the contents of the amendment, to the extent it is relevant for the purpose of this case and held as follows : We do not find that amendment made in the Cenvat Credit Rules, 2004 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Original Authority. 4. We are also of the view that for the purpose of computation of the demand in Annexure A of the show-cause notice for the period beyond 07.07.2009 and for consideration of the issue on merit in respect of Annexure B containing list of other credits availed by the Appellant allegedly held in the Order-in-Original as completely inadmissible, re-adjudication is to be done on the basis of relied upon case laws cited by the Appellant here and to be placed before the Commissioner during the remand proceeding. 5. Now coming to the issue in respect of other periods, it is undisputed fact that goods excluded under Explanation 2 annexed to Notification No. 16/2009-CE(NT) were not included by the Appellant as inputs for the purpose of availment of CENVAT Credits but in respect of other items namely concrete railway sleeper, other iron steel items, welding electrodes, Railway track material etc. which were supposed to be admissible credits as the same issues are no more res integra, in view of series of judgments passed in Appellant s own case by CESTAT as reported in 2011-TIOL-185- CESTAT-MAD, 2015-TIOL-650-HC-MAD-CX, 2004 (175) ELT 476 (Tri.-Chennai), 2012 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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