2011 (11) TMI 629

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.... Beams, Joists etc. which according to them, had been used in assembly, erection and installation of main platform for Kiln. The department's being of the view that these items are neither covered by the definition of 'input' not covered by the definition of 'capital goods', are not eligible for Cenvat credit, issued a show cause notice dated 15/3/07 seeking denial of Cenvat credit of Rs. 1,35,853/- in respect of these items, its recovery alongwith interest and also imposition of penalty under Rule 15 of Cenvat Credit Rules, 2004. Though the show cause notice dated 15/3/07 sought recovery allegedly of wrongly taken Cenvat credit during the period from April 2004 to June 2005, it does not invoke proviso to Section 11A (1)....

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....t platform is structure fixed to the earth and, hence, the same cannot be treated as capital goods, that in this regard, she relies upon the judgment of Larger Bench of the Tribunal in the case of Vandana Global Ltd. vs. CCE, Raipur reported in 2010 (253) E.L.T. 440 (Tri. - LB) and also the judgment of the Apex Court in the case of Saraswati Sugar Mills vs. CCE, Delhi - III reported in 2011 (270) E.L.T. 465 (S.C.), that the items, in question, are not covered by the definition of input, that in view of this, the Cenvat credit was not available in respect of these items and the Commissioner (Appeals)'s order allowing the Cenvat credit in respect of these items is not correct, and that the Commissioner (Appeals)'s finding that the dem....

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.... APP Mills Ltd.. Has held that the view of Larger Bench of the Tribunal in the case of Vandana Global Ltd. taken much before the judgment of the Apex Court in the case of CCE, Jaipur vs. Rajasthan Spinning and Weaving Mills Ltd. (supra) is not the correct view, as it runs contrary to the judgment of the Apex Court, that in view of this, there is no infirmity in the impugned order permitting Cenvat credit in respect of MS Angles, Channels, Beams, Joists etc. used for fabrication and erection of platform for Kiln, that the Cenvat credit demand for the period from April 2004 to June 2005 has been raised by show cause notice dated 15/3/07, that in the show cause notice neither there is any allegation of wilful suppression etc. on the part of th....

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.... etc. used for fabrication of supporting structures would be eligible for Cenvat credit or not, and this issue was ultimately decided by Larger Bench of the Tribunal in 2009. The Apex Court in the case of Jaiprakash Industries Ltd. vs. CCE, Chandigarh reported in 2002 (146) E.L.T. 481 (S.C.) has held that when there was bonafide doubt about excisability of the goods due to divergent views of the High Courts, extended period of 5 years could not invoked. Same view has been taken by the Apex Court in the case of Continental Foundation Jt. Venture vs. CCE, Chandigarh -I reported in 2007 (216) E.L.T. 177 (S.C). Keeping in view of these judgments, the Tribunal also in the case of CCE, Raipur vs. Orion Ferro Alloys Pvt. Ltd. reported in 2010 (25....