TaxTMI 
TaxTMI 
2016 (3) TMI 1040
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....d availed the credit of the duty on capital goods namely aluminium coils, S.S. Sheets, plates channels, M.S. angles etc. classified under chapter heading 72. As per the department the goods falling under chapter 72 are not specified for availment of capital goods CENVAT Credit under Rule 2(a) of CENVAT Credit Rules, 2004 and the appellant was alleged to have contravened the provisions of Rule 9(5) of CENVAT Credit Rules, 2004. The appellant has availed the CENVAT Credit on capital goods to the tune of Rs. 3,61,334/- for the period between December 2004 to April 2007. The department has also alleged wilful suppression by the appellant with intent to avail inadmissible CENVAT Credit. Thereafter show-cause notice dated 23.03.2009 was issued demanding inadmissible CENVAT Credit of Rs. 3,61,334/- under proviso to Section 11A(1) of Central Excise Act, 1944 read with Rule 14 of CENVAT Credit Rules, 2004 along with interest and penalty. Thereafter by adjudication order the Dy. Commissioner upheld the show-cause notice vide order dated 29.02.2012 and thereafter appellant filed appeal against the Order-in-Original and the ld. Commissioner upheld the Order-in-Ori....
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....ailed prior to that date is therefore legitimately taken. However, the Tribunal in the case of M/s. Vandana Global Ltd. V/s. CCE, Rajpur reported in 2010-253-ELT-440 has clarified that the Explanation was only clarifactory and did not change the definition of inputs. This contention of the appellants therefore cannot be accepted. The appellants have relied on the decision of CCE, Jaipur V/s. Rajasthan Spinning & Weaving Mills Ltd. (2010-285-ELT-481-SC) in support of their contention that the steels, plates used in the fabrication of chimney were eligible as inputs. However I find that this decision was in the context of fabrication of chimney for diesel generating set. In respect of the appellants, the chimney and reactor are large structures embedded in the ground and not goods. As the structures of the plant fall under the category of immovable property and do not fall under the category of capital goods, as defined under the Cenvat Credit Rules, 2004, the above decision does not help the appellants. He further submitted that the Commissioner (Appeals) has denied the credit by relying on the judgment of M/s. Vandana Global Limited report....
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.... the Tribunal, is laid upon the judgment of the Larger Bench, rendered in the case of Vandana Global Limited (supra), which does not hold the field because of the subsequent judgment rendered by the Supreme Court. The Tribunal, in subsequent matters, has clearly indicated that the Larger Bench judgment of the Tribunal is no longer a valid law and, therefore, this Court finds that the order impugned cannot be sustained at all. It does not appear from the impugned order whether the judgment of the Supreme Court and the subsequent judgments of the Tribunal were placed before the Tribunal or not. Furthermore, the Tribunal did not record any findings on the merit of the matter. This Court, therefore, feels that justice would be sub-served if the application, seeking waiver of the pre-condition deposit of duty, is considered afresh by the Tribunal. He further submitted that in view of the two judgments of the Hon'ble High Court, the law laid down by the Larger Bench in the case of M/s. Vandana Global Limited (Supra) is not a good law and the Explanation 2 amended on 07.07.2009 will not have retrospective effect. He also submitted that Mumbai CESTAT in the case of M/s. ....
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.... benches of CESTAT and other courts, it cannot be held that there was any suppression / misstatement on the part of the appellant with intention to evade any duty. In the facts and circumstances of the present appeal, extended period cannot be invoked. Without going into the merits of the case, the appeal of the appellant is required to be allowed on time bar alone as demand show cause notice had been issued beyond the period of one year from the date of taking Cenvat Credit. 5. Ld. Counsel also submitted that the Tribunal in similar situation has taken a view that when decisions of the higher appellate authorities during the relevant period were in favour of the assessee, no malafide can be attributed to the assessee so as to invoke the longer period of limitation. He cited the following authorities. 1) Continental Foundation Joint Venture v. CCE, Chandigarh-I (2007 (216) ELT 177 (SC)) = 2007-TIOL-152-SC-CX 2) Jaiprakash Industries Ltd. v. CCE, Chandigarh (2002 (146) ELT 481 (SC)) =2002-TIOL-633-SC-CX-LB 3) M/s. High Tech Equipments& Spares Pvt. Ltd. Final Order No. A/58186/2013-SM[BR] dated 05.11.2013 4) CCE, Raipur v. Baldev Alloys Pv....