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TMI Blog2018 (2) TMI 929X X X X Extracts X X X X X X X X Extracts X X X X ..... ted - demand within the limitation period from the date of issuance of Show Cause Notice is upheld with interest and penalties are set aside - appeal disposed off. - ST/925/2009, ST/30554/2017, ST/30386/2017 - Final Order No. A/31947-31949/2017 - Dated:- 16-11-2017 - Mr. M. V. Ravindran., Member (Judicial) And Mr. Madhu Mohan Damodhar, Member (Technical) Sh. K. Nagaraj Rao, Mr. V.A.A Ravi Kumar, Advocates for the Appellant Sh. Mr. Arun Kumar, Dept. Commissioner (AR) for the Respondent ORDER [ Order per: M. V. Ravindran ] These 3 appeals are disposed of by a common order. This order disposes of the following appeals Sl.No Appeal No Appellants vs Respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitation as also the penalty. As regards appeal No.ST/30386/2017, he would submit that the demand which has been raised is for the period 2012-2013 and the Show Cause Notice is issued on 15.03.2016, hence the entire demand is by limitation that earlier Show Cause Notice dated 21.04.2009 was a same issue, was invoking extended period. It is his submission that the judgment of Apex Court in the case of Nizam Sugar Factory [2006 (197) ELT 465 (SC)] and Pals Microsystems Ltd [2011 (270) ELT 305 (SC)]. will cover the issue in their favour. 4. Ld. Departmental Representative on the other hand after reading the finding of lower authority submits appellant being in the organized sector was aware that he is not eligible to avail Cenvat Credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be obtained, hence these goods are used for erection of towers under Chapter 85.25 of CETA, 1985. Accordingly, they are capital goods and credit cannot be denied on the same. Department has taken the view that these goods are structural items falling under Chapter Heading 73.08 and not capital goods: that towers fabricated out of these goods cannot be transported without dismantling them and hence are immovable and therefore not eligible for credit as capital goods. We find that the matter is already been decided against the appellant by Hon ble High Court of Bombay in the following cases: i) Bharati Airtel Ltd., Vs CCE, Pune-III [2014 (35) STR 865 (Bomb)] ii) Vodafone India Ltd., Vs CCE, Mumbai-II [2015-TIOL-2098-HC-MUM-ST] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is upheld. Penalty imposed on the appellant under Rule 15 (4) of the CENVAT Credit Rules, 2004 read with section 78 of the Finance Act, 1994 is also set aside. Appeal disposed of on above terms with consequential reliefs, if any. 5.2 Accordingly, appeal No.ST/925/2009 is disposed of by holding that demand within the limitation period from the date of issuance of Show Cause Notice is upheld with interest and penalties are set aside and demanded beyond the period of limitation is set aside. 5.3. As regards appeal No.ST/30386/2017, we do find merits in the arguments of Ld. Counsel that the Show Cause Notice issue in this appeal dated 15.03.2016, invoking extended period for demand of the Cenvat Credit for the period 2012-2013. We also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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