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TMI Blog2012 (12) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... d also states that these were used in the fabrication of weighbridge. There is no evidence to show that the weighbridge fabricated out of the structural items covered by the above three invoices is located within the factory premises of the respondent - order is sustained to the limited extent of grant of CENVAT credit of Rs.78,185/- which was availed by the respondent on the following invoices viz. No.201, 209 and 210 dt.08/09/2006, No.2089 and 2378 dt.19/02/2007 and No.2113 dt.20/02/2007. Any further CENVAT Credit allowed by the Commissioner (Appeals) shall stand denied to the respondent - credit so quantified by the original authority shall be recovered from the respondent without interest or penalty. X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore the structurals used for the purpose are not 'CENVATable', (d) that the structurals viz. MS angles, Channels, HR coils etc. on which CENVAT credit was availed by the respondent are classifiable under Chapter 72 of the CETA Schedule, (e) that the assessee did not satisfy the original authority in the manner required by the Supreme Court in its judgment dt.06/05/2010 in Civil Appeal No.2037 of 2006 and Civil Appeal No.7443 of 2008 (Madras Cements Ltd. vs. CCE). 3. The learned Superintendent (AR), apart from the above grounds of this appeal, points out that the reliance placed by the lower appellate authority on the Chief Engineer's certificate/statement is questionable. I have heard the learned counsel for the respondent also. Aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,204/- was shown in the annexure to the show-cause notice as having been taken on structurals covered by three invoices vide No.2089 and 2378 dt.19/02/2007 and No.2113 dt.20/02/2007. The same set of invoices and the same structural items are seen stated in the Chief Engineer's statement which also indicates the end-use as sugar silos. The total credit, for which there is total match between the show-cause notice and the Chief Engineer's statement is Rs.76,662/-. As the respondent also has relied on Chief Engineer's statement, on which the Department relied for issuing the show-cause notice, the benefit of CENVAT credit to this extent is not deniable to the respondent. Yet another set of three invoices mentioned in the annexure to the show-c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State Sugar Corporation case, which is based mainly on a certificate of the Chief Engineer of the assessee, is in support of the respondent. In that case, it was held that the Chief Engineer's certificate was not controverted by the lower appellate authority. In the instant case, similar certificate/statement of the Chief Engineer was relied on in the show-cause notice and has also been relied on by the lower appellate authority. I have also perused that statement and have recorded my findings after comparing it with the annexure to the show-cause notice. Therefore, the ground raised in the present appeal with reference to the Chief Engineer's statement is untenable. The appellant cannot approbate and reprobate with regard to the Chief Eng ..... X X X X Extracts X X X X X X X X Extracts X X X X
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