TaxTMI 
TaxTMI 
2008 (9) TMI 675
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....Central Excise Appeal No. 10/06 has been filed by the appellant assessee disallowing Cenvat credit amounting to Rs. 33,67,481/-against the same impugned order. The period involved is May, 2003 to September, 2004. The grievance of the Department is that the adjudicating Commissioner has wrongly allowed the Cenvat credit in respect of various iron and steel products and cement used by the assessee in setting up the new integrated sponge iron plant and its auxiliary units. The grievance of the assessee is that the adjudicating Commissioner has denied the Cenvat credit on the three items, namely (i) Welding Electrode, (ii) Ammonium Nitrate & (iii) Galvanized Tower Materials. 2. Dr. Gautam Ray, ld. Jt. CDR assisted by Shri S. Das, ld. Ad....
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....ng the credit on Welding Electrode, Ammonium Nitrate & Galvanized Tower Materials for the reasons stated in the adjudication order itself. In addition, he states that the tower materials have been held as not eligible for Cenvat credit by the recent decision of this Bench vide Commissioner of Central Excise, Customs & Service Tax, BBSR II v. Shyam DRI Power Ltd. - 2008 (221) E.L.T. 534 (Tri.-Kolkata). 4. Shri M. P. Debnath, Ld. Advocate, appearing for the assessee, supports the order of the adjudicating Commissioner in respect of iron and steel products and cement. He states that similar items have been allowed Cenvat credit by a decision of the Bombay Bench of the Tribunal in the case of the respondent assessee's own unit vide Bhus....
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.... Raigad. But in regard to iron and steel items used by the assessee, he places reliance on the following decisions :- (i) Hon'ble Himachal Pradesh High Court's decision in Commr. of Central Excise v. M/s Gujarat Ambuja Cement Ltd. dated 24-6-2008 [2008 (230) E.L.T. 221 (H.P.)] in Ex. Ref. No. 5 of 2000 (unreported); (ii) Union of India v. Hindustan Zinc Ltd. - 2007 (214) E.L.T. 510 (Raj.); (iii) CCE, Coimbatore v. Madras Aluminium Co. Ltd. - 2008 (226) E.L.T. 342 (Mad.). He admits that these decisions being of very recent origin, were not before the adjudicating Commissioner. 5. As regards the assessees' appeal, he states that in view of the recent decision of t....
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....o build the plant including the base on which the machineries etc. may have been installed and the iron and steel materials have been used to build the structure and super-structure of the plant and hence, cement and iron and steel material can neither be considered as input for the finished goods nor as machinery to qualify as capital goods. 7. On a query from the Bench, both sides agree that considerable amount of cement and iron and steel product has been used admittedly for civil construction outside the production unit and that the adjudicating Commissioner has merely gone by the bifurcation given in this regard by the appellant assessee without causing any verification. We are, therefore, of the view that in the first instance....
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....eme Court was very much in existence at the time Bombay Bench of the Tribunal and the adjudicating Commissioner decided the cases of the assessee and there is no satisfactorily explanation as to why this decision was not placed before them either by the assessee or by the Department. 8. After the matter was heard for some time, when the ld. Advocate himself suggested that the matter can perhaps be remanded to the adjudicating Commissioner for fresh decision, we find that the departmental representatives are also not averse to that course of action as factual verification of utilization of the impugned goods is necessary apart from the necessity to consider several cited decisions which are of recent origin and of course, the earlier....