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TMI Blog2010 (7) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... n terms of the provisions of Cenvat Credit Rules, 2004. On scrutiny of monthly ER.I returns filed by the appellants during the period from October 07 to March 08 and the information received from the appellants under letter dated 7-6-08, it was noticed by the Department that there was unlawful availment and utilization of the Cenvat credit and hence show cause notices dated 3-9-08 and 5-2-09 for the period from October 07 to March 08 and April 08 to September 08 respectively were issued to the appellants. The Commissioner by the impugned order rejected the contentions sought to be raised by the appellants and confirmed the demand. 4. Learned Advocate for the appellants drawing our attention to orders dated 26-10-04 and 24-11-04 passed by Commissioner (Appeals), Jaipur in appellant s own case for the earlier period wherein had accepted the contention of the appellants about their entitlement to avail the credit and utilize the same in terms of the Cenvat Credit Rules, 2002 and the said decisions were never challenged by the Department, submitted that the Department has accepted the said view taken in those orders on the issue in question and therefore, it is not open to the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... article within the meaning of Central Excise Act, 1944 shall not attract any of the provisions of Central Excise Act, 1944.............. . 7. In response to the said show cause notice, the appellants filed a reply dated 19-9-08 wherein it was stated thus - It is submitted that the Noticees are using various types of Iron and Steel items like plate channel, angle, beam etc. in their plant. These items are being used for making ducts, chutes and supporting steel structure. As all the machines are not at ground level, therefore, the Noticees have to provide platform, walking way and staircases etc. In due course of time these structures require maintenance/repair/replacement. Cement Industry is a continues process Industry and material is conveyed form one stage to other stage through some conveying arrangement, to connect the main machine or to auxiliaries the Noticees are providing ducts, chutes to convey the material, air and water. Further steel items are also used for repairing of machines (Capital Goods) and structure which are damaged in operation due to abrasions, erosion, corrosion in addition to normal wear and tear due to aging. More over Cement industry process is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rection and fabrication and fitted in the plates at the site of assessee. I find that it is an admitted fact that the inputs viz. M.S. Angles, M.S. Plates, ISMB, SAIL Hard Plates, M.S. Channel, M.S. Flat, Chequered Plate, ISMC(Channel) etc. have been used in the fabrication of ducts/chutes and supporting steel structures . 9. All the above findings obviously prima facie disclose, as rightly submitted by the learned DR that the matter is fully covered by the decision of the Larger Bench in Vandana Global Ltd. In the said case, the Larger Bench while dealing with the issue as to whether steel items like angles, joists, bars, beams, channels, flats etc. which are used in construction work, wherein the resultant structures are permanently embedded to the earth can be treated as goods eligible for availing Cenvat credit in relation to the duty paid on such items, has held as under : (a) The term capital goods has been defined in the Cenvat Credit Rules which in turn have been framed under the rule making power conferred under Section 37(2) of the Act. The said Section refers to credit of duty paid on goods used in or in relation to manufacture of excisable goods. Hence capital go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of the present case since the said judgment is delivered prior to the amendment. If the subject matter of the appeal before Tribunal was prior to the amendment, we would have accepted the contention of the revenue. Therefore, the appeal is dismissed answering the questions of law against the revenue in favour of the assessee . 11. Plain reading of the said order would disclose that the Hon ble Karnataka High Court has held that the benefit of input credit can be allowed in respect of the goods which are used for repair and maintenance of plant and machinery. But it is pertinent to note that whether such benefit can be availed even in cases where plant and machinery is embedded in the earth or not was neither the subject matter for the consideration before the Hon ble Karnataka High Court nor the said issue has been dealt with. This aspect assumes importance more particular in view of the fact that the Apex Court in no uncertain terms has held that when such inputs are used in relation to the plant and machinery embedded in the earth, it would not be entitled to avail the Cenvat credit. Being so, the decision which merely decides about the entitlement to avail the Cenvat cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was held by the Tribunal that the inserts did not require any precision machining and therefore, the inserts produced by the assessee were entitled to the exemption provided in Notification No. 208/83-C.E. The notifications in the present case with which we are concerned in Notification No. 223/88-C.E. which was succeeded to by Notification No. 275/88-C.E. Both these notifications are the same in contents. The Department accepted the decision in Hindustan Gas and Industries Ltd. v. CCE, Vadodara [1996 (88) E.L.T. 413] and did not file any appeal there against. Having accepted the said decision, the Department was not entitled to re-agitate the same . (ii) In Novapan Industries Ltd. it was held that - It is settled law that the Department having accepted the principles laid down in the earlier case cannot be permitted to take a contra stand in the subsequent cases (iii) Birla Corporation Ltd. v. CCE - 2005 (186) E.L.T. 266 (S.C.) (iv) Jayaswals Neco Ltd. v. CCE, Nagpur - 2006 (195) E.L.T. 142 (S.C.) = 2007 (8) S.T.R. 305 (S.C.) 16. In all the above decisions, Apex Court has referred to the decisions passed by the Tribunal as being binding upon the Department, unless the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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