TaxTMI 
TaxTMI 
2016 (6) TMI 766
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....used for installation, and erection of capital goods used for manufacture of final products. Show cause notices were issued alleging that credit is not admissible on cement, as it does not fall under the category of capital goods and that credit is not admissible as input because cement is not used directly or indirectly in the process of manufacture of final product. 3. After due process of law, the original authority confirmed the demands along with interest and imposed penalties. The appellant filed appeal before the Commissioner (Appeals). During the material time there were several decisions in favor of the assessee. In M/s Lloyds Steel Industries Ltd vs CCE 2007(211) ELT 275(T) and CCE, vs India Cements-2005(188) ELT 304(T), cement and steel used for structural support /foundation of plant and machinery was held eligible for credit. Following these decisions, the Commissioner (Appeals) allowed the appeal filed by the appellant, and set aside the order. 4. Being aggrieved the department filed appeal before the Tribunal. The Tribunal observed that there are several case laws wherein Cenvat credit is allowed on cement under category of capital goods. There were....
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.... V/15/19/05 dt.6.6.05 77,280 5,000 OIA No.14/2007 dt.18.6.07 - Allowed appeal. CESTAT remanded the case E/22899/2014 Kovvur Nov. 2005 to April.2006 V/15/19/06 dt.14.11.06 1,35,456 1,35,456 OIA No.73/2007 dt.28.12.07 - Allowed appeal. CESTAT remanded the case E/22900/2014 Bhimadole April, 2005 to Dec.2005 V/15/13/06 dt.1.5.06 57,120 57,120 OIA No.17/2007 dt.18.6.07 - Allowed appeal. CESTAT remanded the case E/22901/2014 Thaduvai March, 2006 to Jan. 2007 V/15/10/07 dt.27.2.07 1,05,162 1,05,162 OIA No.72/2007 dt.28.12.07- Allowed appeal. CESTAT remanded the case E/22902/2014 Thaduvai May, 2005 to Feb. 2006 V/15/17/06 dt.1.5.2006 23,664 23,664 OIA No.18/2007 dt.18.6.07 - Allowed appeal. CESTAT remanded the case E/22903/2014 Saggonda Dec. 2003 to August. 2004 &nb....
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....ure of final products or for any other purpose, within the factory of production (ii) All goods, except light diesel oil, high speed diesel oil, motor spirit, commonly known as petrol and motor vehicles, used for providing any output service; Explanation 1: The light diesel, high speed diesel oil or motor spirit, commonly known as petrol, shall not be treated as an input for any purpose whatsoever. Explanation 2: Input includes goods used in the manufacture of capital goods which are further used in the factory of the manufacturer; 10. The contention of the appellant that they raised this alternative plea before the Commissioner (Appeals) in remand proceedings is correct. Though this plea was taken, the Commissioner (Appeals) has not considered or recorded any finding with regard to this plea. The Commissioner(Appeals) has merely accepted the allegation in the show cause notice that 'cement' does not fall within the definition of 'capital goods' or in the definition of 'inputs' .It has to be mentioned that Tribunal had remanded the matter specifically observing that the appellant be given an opportunity to refute the Larger Bench decision. The Co....
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....put forward the alternate plea that credit is admissible on cement during the relevant period under the category of inputs. 12. In remand, the plea of the appellant has not been considered or analysed. The Hon'ble High court in the case of CCE, Visakhapatnam-II Vs Sai Samhita Storages(P) Ltd 2011(270)ELT 33 AP held that credit is admissible on cement and steel items used as inputs for construction of warehouses. The Hon'ble Court relied on the judgment laid in Maruthi Suzuki Ltd Vs Commissioner 2009(240) ELT 641(SC). 13. The interpretation of 'input' rendered by Honble Apex Court in Maruthi Suzuki Ltd was doubted and the issue was referred to Larger Bench in the case of Ramala Sahakari Chini Mills Ltd. The Hon'ble Larger Bench of Supreme Court by the judgment reported in 2016(334)ELT 3(SC) held that the word 'include' in the definition of 'input' in Cenvat Credit Rules 2002/2004 is generally used to enlarge the meaning of the preceding words and it is by way of extension and not with restriction. 14. In the case on hand, the appellants used the cement for erecting and installing machinery(capital goods). It was used within t....