TaxTMI 
TaxTMI 
2021 (1) TMI 927
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.... in Final Order No.517/2008 on the file of the Customs, Excise and Service Tax Appellate Tribunal, Chennai ('the Tribunal' for brevity). 2. The appeal was admitted on 05.9.2008 on the following substantial questions of law: "1. Whether the order of the Tribunal is vitiated inasmuch as it fails to take into account relevant aspects viz. a. mode of annexation b. object of annexation c. beneficial enjoyment and thus stands vitiated ? and 2. Whether the first respondent ought to have allowed credit under the Capital Goods Scheme if not under the Inputs Scheme?" 3. We have heard Mr.G.RM.Palaniappan, learned counsel for the appellant and Mr.V.Sundareswaran, learned Senior Standing Counsel appearing for the Department. 4. We n....
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....nt time? (iii) Whether the Tribunal committed an error of law in not appreciating the Legislative Intent in insertion of ?but shall not include cement, angles, channels, Centrally Twisted Deform bar (CTD) or Thermo Mechanically Treated bar (TMT) and other used for construction of factory shed. buildings or laying foundation or making structures for support of capital goods? vide Not.No.16/2009-C.E (N.T) dated 7/7/2009 being clarificatory in view of already existing explanation 2 to Sec.2 (k) of CENVAT Credit Rules, 2004 and therefore, operates retrospectively?" 3. The Hon-ble Supreme Court with reference to availing of Cenvat Credit under the new Rule 2004 which substituted the earlier Modvat Rules, clearly held in para 25 of the Judgme....
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.... is quoted below for ready reference:~ "4 . After hearing the submissions of both sides, we find that the short issue in this case relates to availment of cenvat credit on OPC cement, MS plates, MS beam, MS Angle, MS channels, MS sheets, M.S.Flat, TMT Rod and TOR Rod which are used for the construction of their "Dry Process Cement Manufacturing Plant". On perusal of records, and the OIO, we find that credit was denied only on the ground that these items were used in the construction of the cement plant. Adjudicating authority has denied credit on the ground that the term "plant" is not defined as "capital goods" in the CCR. We find that on an identical issue of the same appellant, this Tribunal in two different appeals had already allow....
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....ision reported in 2010 (255) E.L.T. 481 (Commissioner of Central Excise, Jaipur v. Rajasthan Spinning & Weaving Mills Ltd.) and in particular Paragraph. Nos. 12 and 13, wherein the Apex Court had applied the user test by following the Jawahar Mills-s case, this Court, held that steel plates and M.S. Channels used in the fabrication of chimney would fall within the ambit of ?capital goods?. In the face of this decision in the assessee?s own case there being no new circumstance or decision in favour or the Revenue, we do not find any good ground to take a different view herein too. 10. As far as the reliance placed by the Revenue on the decision reported in 2011 (270) ELT 465 (SC) (Saraswati Sugar Mills v. Commissioner of C.Ex., Delhi-III....
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.... Miscellaneous Appeal is dismissed. No costs. Consequently, C.M.P. No.16107 of 2005 is also dismissed." 6. Further, we find, the Madras High Court by relying their own order reported in 2014 (310) ELT 636 (Mad.) again dismissed the C.M.A. filed by Revenue and upheld the Tribunal-s order. The Hon-ble High Court in a recent decision reported in 2015 (321) ELT 209 (Mad.) on an identical issue had allowed the C.M.A. filed by the very same appellant. The relevant portion of this Hon-ble Madras High Court order is reproduced as under : '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 tha....