TaxTMI 
TaxTMI 
2017 (10) TMI 793
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....er, appellant vide letter dated 26.10.2009 submitted details of Cenvat credit taken/availed on capital goods during March 2008 to June 2009. It appeared that appellant had availed Cenvat credit on steel items such as M.S. Channels/ M.S. Plates/Joists/CTD bars/TMT bars and cement under capital goods category which were used for construction of foundation and structures of capital goods such as pre-heater towers, raw mill house, storage tanks, clinker silo, factory buildings, roads/drains and non plant buildings. Department however took the view that such foundations and structures are not capital goods. In response, appellant sought to claim capital goods on MS Plates/ MS angles and cement under the category of inputs. It appeared to the Department that the items were not covered during the disputed period, either within the definition of 'capital goods' under Rule 2 and/or within the definition of 'inputs' under rule 2(9) of Cenvat Credit Rules, 2004. In consequence, a show cause notice dated 02.06.2010 was issued to the appellants, proposing demand of allegedly irregular availment of credit of Rs. 3,57,78,719/- on capita goods/inputs during the ....
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.... 4561027 2898615 1662412 Balance 50% credit of FY 2007-08 availed during 2008-09 July 08 1908270 1908270 Aug. 08 240622 240622 Sep. 08 540514 540514 Oct. 08 486444 486444 Nov. 08 36341 36341 Dec. 08 253346 253346 Jan. 09 110303 110303 Feb. 09 0 0 Mar-09 115138 115138 7339322 50% of the credit for the FY 2008-09 2009-10 Apr-09 19495 19495 May 09 7339320 7339320 Balace 50% credit of FY 2008-09 availed during 2009-10 June 09 15243352 15243352 50% of the credit for the FY 2009-10 Total Credit availed 35738719 APPEAL NO. E/2733/2011 2010-11 ....
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.... Global Limited vs. CCE [2010(253)E.L.T.440 (Tri.-LB)], which is no ton gel relevant or correct law. f) Out of the demand of Rs. 1,54,61,225/- pertaining to the period July 2009 to May 2010 (relating to appeal No. E/2733/2011), major part of demand of Rs. 1,50,82,283/- availed in the month of April 2010 pertains to balance 50% credit on FY 2009-10 (prior to 07.07.2009), availed in FY 2010-11. Ld. Advocate submits that the said credit pertains to the period prior to amendment of rule 2(k) w.e.f. 07.07.2009, credit availed cannot be denied. g) In respect of appeal No. E/2732/2011, the remaining demand amount of Rs. 3,78,942/- is conceded by appellants. 6. On behalf of department, Ld. DR Shri K. Raj Kumar supports the adjudication and submits that adjudicating authority has correctly arrived at the conclusions relying upon the decision of Larger Bench of the Tribunal in the case of Vandana Global Limited. 7. Heard both sides and have gone through the facts. Denial of credit on the impugned items by the adjudicating authority has been done primarily relying on the ratio of Vandana Global Limited (supra) and the Board circular ....
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....the appellant was neither factory nor manufacturer and he has only constructed jetty by use of cement and steel for which he was entitled for input credit as jetty was constructed by the contractor, but the jetty is situated within the port area and the appellant is a service provider. According to the appellant, his case is squarely covered by the judgment of the Division Bench of the Andhra Pradesh High Court in Commissioner of Central Excise, Visakhapatnam-II v. Sai Sahmita Storages (P) Limited, 2011 (270) E.L.T. 33 (A.P.) = 2011 (23) S.T.R. 341 (A.P.) wherein in Paragraph 7, it has been clearly held that a plain reading of the definition of Rule 2(k) would demonstrate that all the goods used in relation to manufacture of final product or for any other purpose used by a provider of taxable service for providing an output service are eligible for Cenvat credit. It is not in dispute that the appellant is a taxable service provider on port under the category of port services. Therefore, the appellant was entitled for input credit and the decision of the Division Bench of the Andhra Pradesh High Court squarely applies to the facts of the case and answered the question on which the a....
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....annels, M.S. Plate, Flat, used for erection of capital goods are eligible for Cenvat Credit as capital goods. 9. In an even more recent judgment of the Hon'ble High Court of Madras in the case of Thiru Arooran Sugars, Thirumandakudi and Dalmia Cements (Bharat) Limited reported at [2017-TIOL-1357-HC-MAD-CX], relying upon their earlier judgments and that of the Honble Apex Court in the case of Saraswati Sugar Mills and Rajasthan Spinning & Weaving Mills, it has been held that M.S. structural which support the plant & machinery should get the benefit of cenvat credit. The High Court in that case framed following question of law for consideration: "(1) Whether the order of the Tribunal is right in law inasmuch as it gives effect to the notification No. 16/09 prior to 7.7.2009, overlooking the fact that the same is made expressly effective only from the aforesaid date? (2) Whether the order of the tribunal placing reliance on Vandana Global to disallow the claim of CENVAT on M.S. Plates, M.S. Angles and M.S. Joint is unsustainable in view of the fact that it has lost its value as a precedent in view of the contrary view expressed by the Supreme Court in Centr....