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TMI Blog2018 (1) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... TMI 133 - CESTAT, NEW DELHI (LB)] is distinguished and it was held that manufacturer is entitled to Cenvat credit on various items of steel and cement, etc. used in manufacture or fabrication of capital goods and repair to capital goods inside the factory of production. The appellants are entitled to Cenvat credit on all the items on which Cenvat credit was denied - appeal allowed. - Appeal Nos. E/50419, 50439 & 50441/2015-EX[DB] - Final Order Nos. 71979-71981/2017 - Dated:- 30-8-2017 - Mr. Anil Choudhary, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri Rajesh Chhibber (Advocate) for Appellant Shri Rajeev Ranjan (Joint Commr.) AR for Respondent ORDER Per: Anil Choudhary The issue in these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was used for construction of sheds, yards, staging support structures, godowns etc. as follows: 1192.50 MT of iron and steel involving duty of ₹ 47,14,012+ ₹ 94,303/- Cess, used in construction of technological staging and structures. 1294.00 MT of iron and steel involving duty of ₹ 51,15,252/- plus ₹ 1,02,332/- Cess used in construction of factory godowns, shed, yards. The said amount of Cenvat credit have been reversed under protest vide entry dated 14/06/2007. 615.43 MT of steel involving duty of ₹ 31,81,679+ ₹ 63,597/- Cess, used in staging in Distillery Section which was yet to be completed. 3. In the course of recording of statement of Shri Pankaj Goyal, Manager (Finance), he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2+ cess ₹ 1,02,332/- was proposed to be appropriated and further penalty was proposed under the Rule 15 of CCR, 2004, Act and penalty also proposed Rule 12(1) of CCR, 2002. 4. The SCN was adjudicated upon by relying upon the Larger Bench, ruling of this Tribunal in the case of Vandana Global Ltd. versus C.C.E. 2010 to (253) E.L.T. 440, wherein it was held that the appellants are not eligible to the Cenvat credit in question, save and except an amount of ₹ 57,319/- (for chimney). Further the amount already paid, was appropriated and penalty was imposed under Rule 15 of CCR, 2004 of equal amount. The Adjudicating Authority also ordered confiscation under Rule 15 of CCR, 2004 with option to redeem on payment of fine ₹ 25 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion. It further held that the Larger Bench view, in Vandana Global Ltd. (supra) that intention of legislature behind amendment was to clarify the provisions, was based on conjectures and surmises. The Learned Counsel further points out that the Hon'ble High Court observed that it was not disputed that jetty was constructed and input credit was claimed on cement and steel. The aforesaid definition of Rule 2(k) was applicable and explanation did not provide that cement and steel would not be eligible for input credit. On the contention in said case that Mundra Ports was not a manufacturer and therefore the provisions of Explanation 2 of Rule 2(k) would be applicable only to the factory and manufacturer. The Hon'ble High Court obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India Cements Ltd. versus CESTAT Chennai 2015 (321) E.L.T. 209 (Mad.). Hon'ble Madras High Court held that use of items of iron and steel etc. for erection of capital goods being fabrication of structural to support various machines like Crusher, Kiln, Hoopers, etc., and without such structurals, machinery could not be erected and would not function. The fact being not disputed, it was held that the same are eligible for credit on inputs used in fabrication of capital goods. In this ruling also the ruling in the case of Vandana Global Ltd. (supra) was taken note of distinguished. Further we find that a Single Bench ruling of this Tribunal in Dhampur Sugar Mills Ltd. versus C.C.E. Meerut-II reported at 2016 (344) E.L.T. 285 was allowed c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduction. Accordingly, we hold that the appellants are entitled to Cenvat credit on all the items on which Cenvat credit was denied in the impugned order. Accordingly, we set aside the impugned order and allow the appeals. So far the penalties on the company and the officials, personal penalties concerned all penalties stands set aside. As regard penalty for non filing of ER-1 Returns for June, 06 and Nov. 06, it is contended by the appellant that due to setting up of the factory and introducing computerize system there resulted delay in filing of return. We accordingly, set aside the penalty on that count also. The appellants shall be entitled for consequential benefits if any, in accordance with law. ( Dictated Pronounced in Court ) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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