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TMI Blog2013 (2) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant and whether the appellant is eligible to avail Cenvat credit - appeal allowed by way of remand. - C.M.A. Nos. 3674-3675 of 2012 and M.P. Nos. 1 and 1 of 2012 - - - Dated:- 11-2-2013 - R. Banumathi and K. Ravichandrabaabu, JJ. Shri C. Saravanan, for the Appellant. Shri K. Ravianantha Padmanabhan, for the Respondent. JUDGMENT [Judgment per : R. Banumathi, J. (Common)]. - Whether disallowance of Cenvat credit taken by the appellant on M.S. Rod, Sheets, M.S. Channel, M.S. Plate, Flats etc., amounting to ₹ 1,44,390/- (for the period from April, 2009 to November, 2009) and ₹ 1,26,242/- (for the period from December, 2009 to June, 2010} is correct is the question falling for consideration in these appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an identical issue in the Appellants own case vide Order-in-Appeal No. 21/2010 (SLM) (C. Ex.), dated 11-5-2010 in which I have rejected the plea of the Appellants for Cenvat credit on the materials M.S. Rod, Sheets, Channel, Plate and Flat, etc., under the category of capital goods . The Hon ble CESTAT, Chennai vide its Final. Order No. 1126/10, dated 25-10-2010 has accepted the decision of this forum confirming the rejection of Cenvat credit for the impugned items and demand for repayment of credit with interest. However the Hon ble CESTAT has set aside the imposition of penalty in view of contrary orders on the issue before the same was settled by the Larger Bench of CESTAT, Delhi in the case of Vandana Global Ltd. v. CCE, Raipur [2010- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CESTAT-Del.-LB]. In view of this the order of the Lower Authority demanding an amount of ₹ 1,26,242/- towards the wrongly availed credit on M.S. Angles, Sheets, M.S. Channel, M.S. Plate and Flat etc., as Capital goods with interest under Rule 14 of the Cenvat Credit Rules, 2004 read with Sections 11A 11AB of the Central Excise Act, 1944 is liable to be upheld. As regards the imposition of penalty by the Lower Authority the same is set aside following the ratio of the Final Order No. 1126/10, dated 25-10-2010 of the Hon ble CESTAT, Chennai. 4. The appeal preferred by the appellant before the Appellate Tribunal - CESTAT in Appeal No. E/158/2011 was party allowed by the Order dated 23-3-2012 and the appeal in Appeal No. E/183/2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered by CESTAT, even though the decision of the Honourable Supreme Court in Commissioner of Central Excise, Jaipur v. Rajasthan Spinning and Weaving Mills Ltd. [2010 (255) E.L.T. 481 (S.C.)] was available, the same was not brought to the notice of CESTAT. Learned counsel for the appellant further submitted that the Rajasthan Spinning and Weaving Mills case (cited supra) was not placed before the CESTAT. The appellant is said to have conceded that a portion of the demand in relation to use of steel items for fabrication of supporting structures is payable by the appellant in view of the decision of the Larger Bench of the Tribunal in the case of Vandana Global Ltd. v. Commissioner [2010 (253) E.L.T. 440 (Tri.-LB)]. Learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E.L.T. 481 (S.C.)] was not placed before the CESTAT. We also find that there is no factual finding as to the nature of use of MS steel rods, MS channel and steel plates and the matter has to be reconsidered by the Tribunal in the Light of decision or the Honourable Supreme Court in Commissioner of Central Excise, Jaipur v. Rajasthan Spinning and Weaving Mill. Ltd. [2010 (255) E.L.T. 481 (S.C.)]. Since the Tribunal has to give finding with regard to the materials used by the appellant and whether the appellant is eligible to avail Cenvat credit, we are not expressing any opinion on merits in these appeals with regard to the materials used by the appellant. 8. The Tribunal has to give a factual finding as to whether the materials used by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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