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2017 (6) TMI 796

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..... he same fall in the definition of capital goods - appeal allowed - decided in favor of appellant. - E/25876/2013-SM - 20808/2017 - Dated:- 24-1-2017 - Shri S. S. Garg, Judicial Member For the Appellant : Shri G. Shivadass, Advocate For the Respondent : Shri Parasivamurthy N.K, AR ORDER Per: S.S. Garg The present appeal is directed against the impugned order dated 14.12.2012 passed by the Commissioner (A), wherein the Commissioner (A) has upheld the Order-in-Original and rejected the appeal of the appellant. 2. Briefly the facts of the present case are that the appellants are engaged in the business of packing of bulk cement into retail bags and are registered with the Department w.e.f 1.3.2007. The appellant .....

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..... riginal and rejected the appeal and hence, the present appeal. 3. Heard both the parties and perused the records. 4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without considering all the submissions made by the appellant and without following the binding judicial precedent on the same issue. He further submitted that in the impugned order, the Commissioner (A) has heavily relied on the decision of the Larger Bench in the case of Vandana Global Ltd. reported in 2010 (253) ELT 440 and the amendment to Explanation 2 to Rule 2(k) of CCR, 2004 to deny the credit on cement and steel items used in the manufacture of capital goods. He further submitted that th .....

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..... , shall not be treated as an input for any purpose whatsoever. Explanation 2 - Input include goods used in the manufacture of capital goods which are further used in the factory but shall not include cement, angles, channels, Centrally Twisted Deform bar (CTD) or Thermo Mechanically Treated (TMT) bar and other items used for construction of factory shed, building or laying foundation or making of structures for support of capital goods . He further submitted that silos are storage tanks covered under the definition of capital goods as per Rule 2(a) of CCR, 2004. Further, the steel and the cement are used in the manufacture of capital goods and are therefore entitled to credit under the definition of inputs. For this submission, h .....

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..... ngalore-II vs. M/s. SLR Steel Ltd.: 2012 (280) ELT 176 (Kar.) Monnet Ispat Energy Ltd. vs. CCE, Raipur: 2015 (330) ELT 711 (Tri.-Del.) Jayaswal Neco Ltd. vs. CCE, Raipur: 2015 (319) ELT 247 (SC) CCE vs. India Cements Ltd.: 2014 (310) ELT 636 (Mad.) Learned counsel further submitted that the learned Commissioner (A) has heavily relied upon the Vandana Global Ltd., which according to the counsel does not lay down the correct law and per incuriam and not a valid law as rightly held by Kolkata High Court in the case of Surya Alloy Industries vs. UOI: 2014 (305) ELT 47 (Cal.) and Mudra Ports and Special Economic Zones Ltd. vs. CCE: 2015 (39) STR 726 (Guj. ). He also submitted that the learned Commissioner (A) has fail .....

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..... of capital goods as contained in Rule 2(a) of CCR, 2004 storage tank has been specifically included in the definition of capital goods. Further, I also find that the issue is squarely covered in favour of the appellant by various decisions cited supra wherein it has been specifically held that cement and steel used in the construction of packing plant is allowable as credit as the same fall in the definition of capital goods. Further, in the case of Dalmia Cement Ltd., the Division Bench of the Tribunal has held that cement and steel used in the manufacture of storage tanks silos which is used for storage of cement and various raw materials are eligible for CENVAT credit as inputs under Rule 2(k) of CCR. Further, I also find that the objec .....

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