AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2016 (12) TMI 1377
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....bsp; The structural steel were used by the assessee for supporting various plant and machinery. It is claim of the assessee that the said structural steel was used as part of capital goods i.e. plant and machinery therefore credit is admissible. The Adjudicating authority in the adjudication order confirmed the demand and imposed the equal amount of penalty. Being aggrieved by the adjudication order, the appellant filed appeal before the Commissioner(Appeals), who allowed the Cenvat credit of an amount of Rs. 18,432/- in respect of pipes and electrical parts, however balance amount was disallowed and the penalty imposed was dropped. Ld. Commissioner(Appeals) while passing order mainly placed reliance on the judgment in case of Vandana Global Ltd Vs Commissioner of C.Ex. Raipur [2010-TIOL-624-CESTAT-DEL-LB]. Being aggrieved by the impugned order, Revenue filed appeal in respect of dropping of penalty imposed by the Adjudicating authority and in respect of disallowance of credit appellant also filed appeal. 3. Shri. Roshil Nichani, Ld. Couns....
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....that in view of the above decisions of Hon'ble Supreme Court and High Courts demand is clearly time bar. 4. On the other hand, Shri. N.N. Prabhudesai, Ld. Superintendent (A.R.) appearing on behalf of the Revenue submits that as per the Larger Bench decision in case of Vandana Global Ltd, issue has been settled that the Cenvat credit is not admissible on the structural steel. He further submits that as regard the admissibility of the Cenvat credit on the structural steel he place reliance on the following judgments: (a) Bharti Airtel Ltd Vs. Commissioner of Central Excise, Pune-II[2014(35) S.T.R. 865(Bom.)] (b) Vodafone India Ltd Vs. Commissioner of Central Excise, Mumbai-II[2015(40) S.T.R. 422(Bom.)] (c) Vandana Global Ltd Vs. Commissioner of C. ex. Raipur[2010(253) ELT 440 (Tri. LB)] (d) Saraswati Sugar Mills Vs. Commissioner of C. Ex. Delhi-III[2011 (270) ELT 465(S.C.)] (e) CBEC Instruction No. 267/11/2010-CX dated 8/7/2010 As regard the limitation, he submits that as per the Hon'ble Allahabad High Court judgment in case of C....
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....ch were relied upon by the Ld. Counsel and find that various High Courts consistently taken the view that the Cenvat credit on structural steel is admissible. Some of the Judgments relied upon by the Ld. Counsel with operative portion of the order are reproduce below: (a) India Cements Ltd 9. It is not in dispute that the impugned goods were used for fabrication of structurals to support various machines like crusher, kiln, hoopers, etc., and that without these structurals, the machinery could not be erected and would not function. 10. In the case of Commissioner of Central Excise, Jaipur v. Rajasthan Spinning & Weaving Mills Ltd., reported in 2010 (255) E.L.T. 481, relied on by the learned counsel appearing for the assessee, the Apex Court, while dealing with the issue in question, in Paragraph Nos. 7 and 8, held as follows : "7. In the present case, it is seen that the items in question were used in the erection of various machineries such as, - new additional Electrostatic Precipitator for raw mill project, additional fly ash handling system, MMD crusher etc. for the Dry Process Cement Manufacturing Plant. It is evident that MS Angl....
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....ier considered the case of the assessee in two similar cases of the previous assessment years in C.M.A. No. 1301 of 2005, dated 31-12-2012, where a reference was made to an order passed earlier in respect of the very same assessee. While dismissing the appeal filed by the Revenue, the Division Bench of this Court held as follows : "8. Even though learned standing counsel appearing for the Revenue submitted that the judgment in the assessee's own case reported in AIT-2011-358-HC (The Commissioner of Central Excise v. M/s. India Cements Limited) had been appealed against, as of today, there are no details; in any event, the fact herein is that the Revenue does not controvert the facts found by the Assistant Commissioner that the impugned goods were used for fabrication of structurals to support various machines like crusher, kiln, hoppers, pre-heaters conveyor system etc. and that without these structurals, the machinery could not be erected and would not function. 9. In the decision 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....
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....there is no change in the circumstance and this Court had already considered the issue and held that the decision reported in 2011-TIOL-73-SC-CX = 2011 (270) E.L.T. 465 (S.C.) (Saraswati Sugar Mills v. Commissioner of Central Excise, Delhi - III) in Civil Appeal No. 5295 of 2003, dated 2-8-2011 is distinguishable on facts. This Court applied principles laid down in the decision reported in 2010 (255) E.L.T. 481 (Commissioner of Central Excise, Jaipur v. Rajasthan Spinning & Weaving Mills Ltd.) and held that the Tribunal was justified in allowing the assessee's contention in respect of the very same assessee. 13.The present appeal is also in respect of the very same assessee and therefore we find no distinguishable fact or issue contrary to the earlier decision of this Court. 14. It is relevant to note that this Court in the decision reported in 2014-TIOL-1185-H-Mad-CX = 2014 (310) E.L.T. 636 (Mad.) in respect of the very same assessee in C.M.A. No. 1265 of 2014, following the abovesaid decision of this Court, dismissed the appeal filed by the Revenue. 15. Accordingly, following the principles laid down in the decision reported in 2010 (255) E.L.T. 481 (Commissioner of Central Ex....
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....ed view that credit cannot be denied on the ground that the goods are not covered under the definition of capital goods under Rule 57Q as it stood before 16-3-1995. 12.The case on hand is squarely covered by the decision reported in 2010 (255) E.L.T. 481 (Commissioner of Central Excise, Jaipur v. Rajasthan Spinning and Weavinig Mills Ltd.) and the goods used by the assessee are falling under the capital goods, eligible for credit. 13. For the reasons stated above, the appeal fails and the questions of law is answered in favour of assessee and the appeal is dismissed. No costs. (c) The Commissioner of Central Excise and Customs Vs. The Customs Excise and Gold (Control) appellate Tribunal, and M/s. Lloyds Steel Industries Central Excise Reference No. 5/2004, date of pronouncement 24/10/2007- High Court of Bombay- Bench of Nagpur. 5. We have considered the submissions made by the Counsel for the rival parties and perused the records and Judgments relied upon. In our opinion, the issue raised in the present reference is squarely covered by the judgment of the Apex Court in Commissioner of Central Excise Vs.&nbs....
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....at : "The exemption notification must be so construed as to give due weight to the liberal language it uses. The ammonia used in the water treatment, steam generation and inert gas generation plants, which are a necessary part of the process of manufacturing urea, must, therefore, be held to be used in the manufacture of ammonia and the raw naphtha used for the manufacture thereof is entitled to the duty exemption." 6. The Tribunal has held that the cement, steel plates and bars in respect of which modvat credit has been availed of by the respondent no. 2 have been used for providing support to machines. This is a pure findings of fact recorded by the Tribunal which cannot be said to be perverse and, therefore, binding. In view of the clear ratio laid down by the Apex in the case of Jawahar Mills Ltd(supra) we find no illegality in the order passed by the Tribunal. Since the issue is squarely covered by the judgment of the Apex Court in the case of Jawahar Mills Ltd., in our opinion, no substantial question of law is involved in the present references. On this g....
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....ucted and input credit was claimed on cement and steel. The aforesaid definition of Rule 2(k) was applicable and Explanation 2 did not provide that cement and steel would not be eligible for input credit. According to learned counsel for the appellant, the appellant is not manufacturer and, therefore, the provisions Explanation 2 of Rule 2(k) would be applicable only to the factory and manufacturer. The appellant is neither having any factory nor he is manufacturer. The appellant is a service provider of port. We need not go into this question as to whether the appellant is a factory or manufacturer or service provider in view of the fact that it is not disputed by Mr.Y.N.Ravani, learned counsel appearing for the revenue in this Tax Appeal that the appellant provides service on port for which he is getting jetty constructed through the contractor and the appellant has claimed input credit on cement and steel. The cement and steel were not included in Explanation 2 from 2004 upto March 2006. The Cenvet Credit Rules 2004 were amended in exercise of the powers conferred by section 37 of the Central Excise Act 1944 with effect from 7.7.2009, the date on which it was notified by the Cen....
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....uch, the amendment could operate only prospectively. In our opinion, the view taken by the Tribunal is based on conjectures and surmises as the Larger Bench of the Tribunal used the expression that intention behind amendment was to clarify. The coverage under the input from where this intention has been gathered by the Tribunal has not been mentioned in the judgment. There is no material to support that there was any legislative intent to clarify any existing provision. For the same reason, as mentioned above, the decision of the Apex Court in Sangam Spinners Limited Vs Union of India and others, reported in (2011) 11 SCC 408 = 2011-TIOL-31-SC-CX would not be applicable to the facts of the instant case. 9. Mr.Ravani has also vehemently urged that since jetty was constructed by the appellant through the contractor and construction of jetty is exempted and, therefore, input credit would not be available to the appellant as construction of jetty is exempted service. The argument though attractive cannot be accepted. The jetty is constructed by the appellant by purchasing iron, cement, grid etc. which are used in construction of jetty. The contractor has constructed jetty. There are t....