2018 (2) TMI 280

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.... products, such as angles, channels, plates, bars, coils and roof sheeting, used for construction of factory sheds, structures for tanks and storage tanks. In effect, the appeal before the first appellate authority was limited to the recovery of Rs. 4,91,074 on the construction of the tanks as the assessee, admitting to incorrect availment in relation to the other two, reversed the applicable credit. In addition, the penalty imposed is also under challenge. 2. The first appellate authority, taking note of the definition of capital goods in rule 2(a) of CENVAT Credit Rules, 2004 which included storage tanks and the certificate of Chartered Engineer and by placing reliance on the decision of the Hon'ble Supreme Court in Rajasthan Spinning ....

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....on 37(1), in excess of the specific powers under Section 37(2)(xvia) to grant such credit for the earlier period prior to the amendment. We, therefore, have no hesitation in discarding such a proposition that powers under Section 37(1) was used to grant credit in respect of goods for which credit cannot be otherwise allowed under specific powers under Section 37(2)(xvia)". and, therefore, would operate against the assessee. 4. Learned Counsel for appellant relied upon the decision of the Tribunal in Dalmia Cements (Bharat) Ltd v. Commissioner of Central Excise, Trichy [2015 (330) ELT 645 (Tri-Chennai)] allowing credit of duties paid on cement and steel used in manufacture of silos, and on the decision of Hon'ble High Court of Karnatak....

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.... Industries Ltd. and Tata Motors Ltd. which were upheld by Hon'ble Bombay High Court are per incuriam as the details of various Rules as also the judgment of the Hon'ble Supreme Court, Hon'ble High Court of Karnataka and other judgments of this Tribunal were not brought to the notice of the Tribunal or the Hon'ble Bombay High Court. We also note some of these judgments are subsequent to the judgment in the case of Ispat Industries Ltd. and Tata Motors Ltd." 35. It is unfortunate that the Tribunal ignores and brushes aside even orders of this Court. Had the Tribunal noted the facts in Ispat Industries Ltd. and Tata Motors Ltd. it would have possibly concluded that those orders would bind it in this case. Possibly because it was incl....