2010 (5) TMI 745

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....s appeal which is merely in support of the order of the Commissioner (Appeals). 2. Heard both sides extensively. 3. Relevant facts, in brief, are as follows : The respondent is a manufacturer of VP sugar molasses. They are availing the Cenvat credit on inputs and capital goods. A show cause notice was issued on 24-11-06 alleging that the credit taken on MS plates, MS ingots and MS channels as capital goods by the respondents was not regular inasmuch as the said goods did not fall in the category of capital goods. The respondents filed their reply dated 22-12-06 contesting the show cause notice. They inter alia submitted that in industry like theirs parts and staging and supporting structures were required to be fabricated by them w....

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....Vandana Global Ltd. decided by Misc. Order No. 296/2010, dated 30-4-2010 [2010 (253) E.L.T. 440 (Tribunal-LB)] and therefore, the orders of the authorities below should be set aside. 5. Learned Advocate for the respondents, after taking me to through relevant portions of the show cause notice, order-in-original and order of the Commissioner (Appeals), submits that the show cause notice no where mentioned about the impugned items being used for repair and maintenance. The Department is trying to make out a new case being a case other than what is in the show cause notice and such a thing is not permissible as held by the Hon'ble Supreme Court in the case of Commissioner of Central Excise, Bangalore v. Brindavan Beverages (P) Ltd. - 2007 (....

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.... and at the same time he has accepted the finding of the original authority without further evaluating any evidence on this crucial issue. The department is contesting the finding of the Commissioner (Appeals) which, in my opinion, is based on the finding of original authority. A reading of the Misc. order of the Larger Bench in Vandana Global dated 30-4-2010 clearly shows that the eligibility of Cenvat credit on these items depend upon the nature of use as to whether they are used in fabricating supporting structures or parts of machinery. In the present case from the available records, the Tribunal is not in a position to come to a definite conclusion. The submission that the Hon'ble Supreme Court in the case of SACI Allied Products Ltd.,....