2024 (1) TMI 135

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....d that the appellant has availed cenvat credit on MS angles, channels, beams which have been used for structures supporting the capital goods. The department was of the view that the credit availed on these goods received by the appellant for the period September 2008 to February 2010 is not eligible to the appellant and the same has to be reversed. Show cause notice was issued proposing to deny the said credit and to recover the same along with interest and for imposing penalties. After due process of law, the original authority vide order impugned herein allowed the credit of Rs.35,86,474/- and denied credit to the tune of Rs.51,71,213/-. The adjudicating authority imposed equal penalty under Section 11AC of the Central Excise Act, 1944 r....

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....e user test and held that the when MS structurals put into use to support the capital goods, the credit availed on such MS angles / beams cannot be denied. The decision in the case of Chemplast Sanmar Ltd. Vs Commissioner, LTU, Chennai - 2018 (2) TMI 4 - CESTAT CHENNAI was also relied to put forward the very same argument. 3. The Ld. Counsel asserted that as per the Annexture to the show cause notice itself, it can be seen that the entire credit is availed on invoices which are prior to 07.07.2009 except three invoices dated 17.09.2009, 02.02.2010 & 02.02.2010 for an amount of Rs. 10,560/- Rs. 395.20 and Rs. 28,133.84 respectively. It is submitted by the counsel that all other invoices on which credit availed is prior to 07.07.2009 and t....

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....igible. The said Explanation was introduced by Notification No.16/2009-CE (NT) dated 07.07.2009 only. The decision rendered by the Larger Bench of the Tribunal in Vandana Global Ltd. has been set aside by the Hon'ble High Court of Chhattisgarh as reported in 2018 (16) G.S.T.L 462 (Chatt.). Further, the Hon'ble Jurisdictional High Court in the case of Thiru Arooran Sugars (supra) has held that the Explanation does not have a retrospective application and also that user test has to be applied. Relevant part of the said decision reads as under : "1.1 C.M.A. No. 3814 of 2011 is directed against the judgment and order dated 30-9-2011, passed by the Tribunal, while C.M.A. Nos. 2695 and 2696 of 2012 are directed against the common order, ....