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TMI Blog2016 (3) TMI 1040X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal no. E/1641/10 are taken. 2. Briefly the facts of the case are that the appellants are engaged in the manufacture of excisable goods namely bulk drugs classified under Chapter 29 of Central Excise Tariff Act, 1985. The appellant had availed the credit of the duty on capital goods namely aluminium coils, S.S. Sheets, plates channels, M.S. angles etc. classified under chapter heading 72. As per the department the goods falling under chapter 72 are not specified for availment of capital goods CENVAT Credit under Rule 2(a) of CENVAT Credit Rules, 2004 and the appellant was alleged to have contravened the provisions of Rule 9(5) of CENVAT Credit Rules, 2004. The appellant has availed the CENVAT Credit on capital goods to the tune of ₹ 3,61,334/- for the period between December 2004 to April 2007. The department has also alleged wilful suppression by the appellant with intent to avail inadmissible CENVAT Credit. Thereafter show-cause notice dated 23.03.2009 was issued demanding inadmissible CENVAT Credit of ₹ 3,61,334/- under proviso to Section 11A(1) of Central Excise Act, 1944 read with Rule 14 of CENVAT Credit Rules, 2004 along with interest and penalty. Thereafter b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of factory sheds/buildings/constructions were excluded from the purview of the definition of 'inputs', was added only from 07.07.2009, any credit availed prior to that date is therefore legitimately taken. However, the Tribunal in the case of M/s. Vandana Global Ltd. V/s. CCE, Rajpur reported in 2010-253-ELT-440 has clarified that the Explanation was only clarifactory and did not change the definition of inputs. This contention of the appellants therefore cannot be accepted. The appellants have relied on the decision of CCE, Jaipur V/s. Rajasthan Spinning & Weaving Mills Ltd. (2010-285-ELT-481-SC) in support of their contention that the steels, plates used in the fabrication of chimney were eligible as inputs. However I find that this decision was in the context of fabrication of chimney for diesel generating set. In respect of the appellants, the chimney and reactor are large structures embedded in the ground and not goods. As the structures of the plant fall under the category of immovable property and do not fall under the category of capital goods, as defined under the Cenvat Credit Rules, 2004, the above decision does not help the appellants. He further submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 305) ELT 47 (Cal.) in para 8 has observed as follows: 8. The foundation of the order, passed by the Tribunal, is laid upon the judgment of the Larger Bench, rendered in the case of Vandana Global Limited (supra), which does not hold the field because of the subsequent judgment rendered by the Supreme Court. The Tribunal, in subsequent matters, has clearly indicated that the Larger Bench judgment of the Tribunal is no longer a valid law and, therefore, this Court finds that the order impugned cannot be sustained at all. It does not appear from the impugned order whether the judgment of the Supreme Court and the subsequent judgments of the Tribunal were placed before the Tribunal or not. Furthermore, the Tribunal did not record any findings on the merit of the matter. This Court, therefore, feels that justice would be sub-served if the application, seeking waiver of the pre-condition deposit of duty, is considered afresh by the Tribunal. He further submitted that in view of the two judgments of the Hon'ble High Court, the law laid down by the Larger Bench in the case of M/s. Vandana Global Limited (Supra) is not a good law and the Explanation 2 amended on 07.07.2009 will not h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e realm of conflicting interpretations given by various benches of CESTAT and other courts, it cannot be held that there was any suppression / misstatement on the part of the appellant with intention to evade any duty. In the facts and circumstances of the present appeal, extended period cannot be invoked. Without going into the merits of the case, the appeal of the appellant is required to be allowed on time bar alone as demand show cause notice had been issued beyond the period of one year from the date of taking Cenvat Credit. 5. Ld. Counsel also submitted that the Tribunal in similar situation has taken a view that when decisions of the higher appellate authorities during the relevant period were in favour of the assessee, no malafide can be attributed to the assessee so as to invoke the longer period of limitation. He cited the following authorities. 1) Continental Foundation Joint Venture v. CCE, Chandigarh-I (2007 (216) ELT 177 (SC)) = 2007-TIOL-152-SC-CX 2) Jaiprakash Industries Ltd. v. CCE, Chandigarh (2002 (146) ELT 481 (SC)) =2002-TIOL-633-SC-CX-LB 3) M/s. High Tech Equipments& Spares Pvt. Ltd. Final Order No. A/58186/2013-SM[BR] dated 05.11.2013 4) CCE, Raipur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l goods by referring the decision of apex court in the case of Rajasthan Spinning & Weaving Mills 2010 (255) ELT 481 (SC). 9. Therefore, keeping in view the law laid down by the Hon'ble High Courts and the Supreme Court in Rajasthan Spinning & Weaving Mills and the CESTAT Mumbai in the case of M/s. Lloyds Metals and Engg Ltd., I am of the considered view the appellants are entitled to CENVAT Credit on all the items mentioned above and the impugned order denying the CENVAT Credit solely on the basis of law laid down by the Larger Bench in the case of M/s. Vandana Global Limited (Supra) is wrong. 10. Now coming to the question of limitation, the ld. Counsel has submitted that the entire demand is barred by limitation except demand of ₹ 14,206/- which is within limitation. After going through the various judgments cited by the ld. Counsel for the appellants on limitation, wherein the various benches of the Tribunal has held that when the same provision of law is subject to various interpretation by different benches, then in that situation, extended period of limitation should not be invoked. As in that situation, no malafide can be attributed on the part of the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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