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TMI Blog2018 (6) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... s for further manufacturing of cement and the said final product cement is cleared on payment of duty - Similar issue came up before Hon’ble High Court of Andhra Pradesh in the case of Sai Sahmita Storage Pvt. Ltd., [2011 (2) TMI 400 - ANDHRA PRADESH HIGH COURT], where Hon’ble High Court was considering the eligibility to avail CENVAT credit of duty paid on Cement and TMT Steel Bar for construction of warehouses and while dismissing the appeal of Revenue held that credit needs to be allowed as warehouses are used for rendering of taxable output services. The question of revenue neutrality does arise and it has to be held that credit of the duty paid may be available to the applicant - the entire demand is liable to be set aside on limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e duty paid on cement is available as CENVAT credit as the structures are used in manufacturing of cement, dutiable goods. It is his further submission that on plain reading notification No. 67/95, it does not indicate that cement captively consumed by them is not covered under notification No. 67/95; reads out the entire notification as reproduced in the Order-in-Original; submitting that the notification grants exemption to inputs used for capital goods. He would submit that the question of revenue neutrality would arise even if the demand of cement captively consumed is raised as the said cement has been consumed for erection/installation activities during the expansion of the plant capacity. 5. Ld. Commissioner (A.R) on the other han ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as input and no duty liability is to be discharged. (d) The demand of the duty is for the period May 2008, June 2008 and August 2008 by a show cause notice dated 03.12.2008. 7. We find that the issue can be decided only on the point of revenue neutrality which was argued by the appellant s Counsel during the course of arguments. We do find merits in such arguments as there is no dispute as to the consumption of cement for erection structures of plants for manufacturing of cement; even if the appellant is required to discharge duty on such captively consumed cement, they are eligible to avail CENVAT credit of this duty paid on cement captively consumed as it is undisputed that structures made out of captively consumed cement are used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised for seeking to set aside the demands as being hit by limitation is the law settled by the Tribunal in the case of Jet Airways [2016(44) STR 465 (Tri.-Mumbai)] which has been upheld by Hon ble Apex Court as reported at [2017(7) 4 GSTL 535 (S.C)]. 8. In our view, the question of revenue neutrality does arise and it has to be held that credit of the duty paid may be available to the applicant. Accordingly, following the ratio laid down by the Tribunal and upheld by Hon ble Apex Court in the case of Jet Airways, we hold that the entire demand is liable to be set aside on limitation and we do so. 9. Impugned order is set aside and appeal is allowed. ( Pronounced in the open Court on 06.06.2018 ) - - TaxTMI - TMITax - Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X
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