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TMI Blog2015 (11) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... ders in the case of CCE Trichy Vs India Cements Ltd. [2013 (1) TMI 5 - Madras High Court], and CCE & Service Tax Vs India Cements Ltd. - [2014 (7) TMI 881 - MADRAS HIGH COURT] had dismissed the Revenue's appeals - Madras High Court by relying their own order reported in [2014 (7) TMI 881 - MADRAS HIGH COURT] 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 (3) TMI 661 - MADRAS HIGH COURT] on an identical issue had allowed the C.M.A. filed by the very same appellant. - immovability is not a criteria for denial of cenvat credit, we hold that appellants are eligible for cenvat credit on the capital goods used in "Dry Process Cement Manufacturing Plant". A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ritten submissions and reiterated the same. It is submitted that cenvat credit has been denied only on the ground that these goods were used for construction of "Dry Process Cement Manufacturing Plant" and the word 'plant' has not been defined in CCR as "capital goods". Ld. Advocate drew our attention to the copy of SCN. He submits that these items were used in the manufacture as capital goods for setting up of a cement plant. There was no allegation in the SCN that either structures were embedded to earth or immovable whereas the adjudicating authority in his order held that these were used for civil construction which are fixed to earth and has become immovable property. The counsel submitted that in their own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.R reiterated the findings of the adjudication order and submits that the goods in question were used in construction of "Dry Process Cement Manufacturing Plant" which does not come within the definition of "capital goods" and the adjudicating authority has rightly denied the credit. 5. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without these structurals, the machinery could not be erected and would not function. 9. In the decision reported in AIT-2011-358-HC = 2012 (285) E.L.T. 341 (Mad.) (The Commissioner of Central Excise v. M/s. India Cements Limited), pointing out to Rule 57Q and the interpretation placed by the Apex Court in the decision 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 Millss 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 asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven the fact that on the identical set of facts, the assessee's own case was considered by this Court and by following the decision reported in 2010 (255) E.L.T. 481 (Commissioner of Central Excise, Jaipur v. Rajasthan Spinning & Weaving Mills Ltd.), the Revenues appeal was also rejected. In the circumstances, this Civil 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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