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TMI Blog2013 (12) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... und cannot be denied. New grounds raised in the appeal by the revenue – Held that:- The grounds of appeal in the Revenue’s appeal do not mention the point at all that the paint had been cleared as such – Revenue’s appeal is on a totally on different ground that paint after its application on capital goods i.e. the power plant machinery installed in the factory which is fixed to the earth, would not be eligible for cenvat credit - The plea has to be rejected not only on the ground that the department cannot file appeal on a new ground which was not there at all in the show cause notice, but the same has also to be rejected as an obsurd plea – There is no merit in the revenue’s Plea and the same is rejected – Decided against Revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) vide order-in-appeal dated 9.7.2010 upheld the Dy. Commissioner's order and dismissed the Revenue's appeal. The Commissioner (Appeals) also observed that the paint was used within the factory and that there was no condition for use of paint in the factory by the manufacturer only. He also observed that the paint is specifically covered by definition of input in Rule 2 (k). Against this order of the Commissioner (Appeals), this appeal has been filed by the Revenue. One of the main grounds in this appeal filed by Revenue is that the paint had been applied on plant and machinery installed in the factory and since plant and machinery being fixed towards the earth, are not excisable, the paint would not be eligible for cenvat credit a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue's appeal . 5. I have considered the submissions from both the sides and perused the records. Ongoing through the show cause notice I find that the only basis on which the show cause notice issued is that since the paint had been issued to contractors, who had applied the same on the power plant machinery installed and commissioned by them and, therefore, it would amount to clearance of cenvat credit availed inputs as such to the contractors and, therefore, cenvat credit taken by the Respondent in respect of the paint should have been reversed. This plea were considered both by the Original Adjudicating Authority as well as by the First Appellate Authority and the same has not been accepted and both have held that since the paint is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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