2013 (1) TMI 5

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....at structural steel items viz., M.S.Plates, Angles, Channels and HR Sheets used for civil construction activity, are capital goods eligible for credit in terms of Rule 57Q as it stood at the relevant time?"   2. It is seen from the facts narrated that the first respondent herein is manufacturer of cement falling under Chapter 25 of the Central Excise Tariff. The respondents purchased MS plates, MS Angles and channels and HR Sheets for fabrication of structurals to support various machines like crusher, kiln, hoppers, pre-heaters conveyor system etc. In respect of the above items, the assessee availed MODVAT Credit to the extent of Rs.82,49,052/- covering the period upto September, 1998. The appellant, however, rejected the claim holdi....

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....are capital goods entitled to credit under Rule 57Q of the Central Excise Rules and thereby allowed the appeal. Aggrieved by this, the present appeal has been filed by the Revenue. 5. Learned standing counsel appearing for the Revenue placed heavy reliance on the decision of the Apex Court reported in 2011(270) E.L.T.465 (SC) (Saraswati Sugar Mills V. Commissioner of C.Ex., Delhi-III) and submitted that considering the decision of the Apex Court, the assessee was not entitled to the claim of MODVAT Credit.   6. Per contra, learned counsel appearing for the assessee sought to distinguish the decision reported in 2011(270) E.L.T.465 (SC) (Saraswati Sugar Mills V. Commissioner of C.Ex., Delhi-III) and placed heavy reliance on the decisi....

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.... reported in AIT-2011-358-HC (The Commissioner of Central Excise V. M/s.India Cements Limited), pointing out to Rule 57Q and the interpretation placed by the Apex Court in the decision reported in 2010 (255) E.L.T.481 (Commissioner of Central Excise Jaipur V. Rajasthan Spinning & Weaving Mills Ltd.) and in particular Paragraph Nos.12 and 13, wherein the Apex Court had applied the user test by following the Jawahar Mills's case, this Court held that steel plates and M.S.Channels used in the fabrication of chimney would fall within the ambit of "capital goods". In the face of this decision in the assessee's own case there being no new circumstance or decision in favour of the Revenue, we do not find any good ground to take a different view he....