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TMI Blog2016 (6) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... patchers and formers are used. The liners, patchers and formers in due course of time, get melted and get into mixed with the manufacture of final products. They availed cenvat credit on these goods used in the factory for heating furnace for the manufacture of the final products. 2.1 During the course of verification of input invoices, and the related documents by the department, it was alleged that there has been wrong availment of cenvat credit on the impugned goods for the period October 2006 to May 2011 and a SCN was issued for (i) ineligible credit availed on inputs for Rs. 10,49,211/- and (ii) ineligible credit availed on capital goods for Rs. 3,11,335/-. After due process of law, the adjudicating authority vide OIO No.01/2013 dt. 31.1.2013 held the credit availed as ineligible and also imposed penalty under Section 11AC. On appeal, the learned Commissioner (Appeals) held that (i) cenvat credit on the impugned inputs to the tune of Rs. 10,49,211/- is allowed as eligible credit and set aside the demand of interest and penalty. Revenue is on appeal against this order of learned Commissioner (Appeals) in E/40295/2015. (ii) Cenvat credit to the tune of Rs. 3,11,335/- availed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of CCR 2004. In this regard, he relied on the Supreme Court decision in the case of Caprihans India Ltd. Vs CCE 2015 (325) ELT 632 (SC). He further submits that the case law relied on by learned Commissioner (Appeals) in the case of Rutvi Steel & Alloys Vs CCE Rajkot 2009 (243) ELT 154 (Tri.-Ahmd.) is not applicable to the facts of the present case as this decision is on the requirement to fulfill the conditions of procedures for availing credit in terms of Rule 9 (5) of CCR 2004 which has not been raised in the SCN issued to the appellant. 4.1 Regarding reliance by learned Commissioner (Appeals) on the Tribunal's Larger Bench decision in the case of Vandana Global Ltd. Vs CCE Raipur 2010 (253) ELT 440, ld. counsel submits that the Tribunal's LB decision in the case of Vandana Global Limited (supra), is no longer a good law in view of the judgment rendered by the Supreme Court in the case of Commissioner of Central Excise, Jaipur v. Rajasthan Spinning & Weaving Mills Limited, reported in 2010 (255) E.L.T. 481 (S.C.). The Tribunal's LB decision also stands disapproved by the Hon'ble Calcutta High Court in the case of Surya Alloy Industries Ltd. Vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HR plates, MS channels, HR sheets and MS rectangle bars treating them as "capital goods". He further submits that since the amount is below Rs. 2.50 lakhs, as mentioned in Sl.No.2 & 3 of the table of the impugned order, Revenue did not prefer any appeal before the Commissioner (Appeals). In support of his contention he produced a copy of Tribunal's decision in the case of CCE & ST Raipur Vs SKS Ispat and Power Ltd. 2015 (236) ELT 620 (Tri.-Del.), wherein Revenue's appeal was dismissed. However, he emphasized that since they were not able to convince the Bench, the Revenue's appeal was dismissed though the facts were discussed in detail by learned Member with the observation that Revenue has failed to produce any evidence contrary to the respondent. 6. Heard both sides. 7. E/40295/2015 being the department appeal is taken up for decision. The Commissioner (Appeals) has observed in para 7 of his order; (i) that it is a fact and not denied any time during the proceedings that impugned inputs were brought to the factory of the appellant,(ii) that the appellant s averment is that they are using the channels, beams , angles , bars etc. inside the furnace and tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls) failed to consider this finding. (iii) that as per Rule 5 of CE (Appeals) Rules , 2001 , the appellant shall not be entitled to produce before the Commissioner (Appeals) any evidence, which was not given before the adjudicating authority, and various other points raised by them in their grounds of appeal. The revenue has stated that the Chartered Engineer s certificate is a new and fresh evidence. Even in their grounds of appeal or during their arguments, the contents and bona fides of the said certificates have been doubted or denied. In their appeal, their contention is that of a procedural lapse, this cannot be a ground for denial of the credit as the finding in para 7 is very clear and convincing. In the absence of any malafide, the contention of the revenue cannot be accepted. The department appeal is dismissed as devoid of merits. 8. With regard to Appeal Nos.E/40258/2015 and E/40358/2015 being the assessee s appeal on denial of credit on the capital goods , the Commissioner (Appeals) has observed in para 8 as follows, With regard to the Impugned Capital goods, I find that it is the appellant s contention that they are components of furnace which is also a machinery clas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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