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TMI Blog2021 (1) TMI 927X X X X Extracts X X X X X X X X Extracts X X X X ..... TOM, EXCISE AND SERVICE TAX THE COMMISSIONER OF CENTRAL EXCISE, [ 2015 (3) TMI 661 - MADRAS HIGH COURT] wherein an identical question was considered and the only difference being that the case arose under the CENVAT Credit Rules, which subsequently stood substituted by the MODVAT Rules. The substantial questions of law are answered in favour of the appellant/assessee. - Civil Miscellaneous Appeal No.2735 of 2008 - - - Dated:- 7-1-2021 - Honourable Mr. Justice T.S. Sivagnanam And Honourable Ms. Justice R.N. Manjula For the Appellant : Mr.G.RM.Palaniappan for Mr.S.Muthuvenkatraman For the Respondents : Mr.V.Sundareswaran, SSC JUDGMENT T.S.SIVAGNANAM, J. This appeal has been filed by the assessee under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment read as hereunder: 2. The following substantial questions of law were sought to be raised for consideration: (i) Whether the Tribunal misdirected itself and thereby fell into an error in holding that CENVAT credit is admissible on the capital goods which were not specified in the Rule 2(a)(A) of CENVAT Credit Rules, 2004? (being contrary to the ratio laid down by the Apex Court in Vikram Cement Vs. CCE, Indore reported in 2005 (187) ELT 145 SC. [Appeal (Civil) No. 1197/2005 dated 24/8/2005]? (ii) Whether the Tribunal was justified in holding that CENVAT credit is admissible on Construction materials (viz., Cement, MS Angles, MS Plates, MS Channels and HR Sheets etc), which are used for civil construction activity as C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Jaypee Rewa Cement would continue to apply. The decision in Commissioner of Central Excise v. J.K.Udaipur Udyog Limited (supra) holding to the contrary is, in our opinion, not good law. The reference is answered accordingly. All the appeals and special leave petitions will now be listed for being disposed of in the light of this judgment. 4. Thus following the said judgment, the Madras High Court, in at least four cases of the Assessee has decided that Cenvat Credit in respect of capital goods like Structural Steel items like M.S.Plates, Angles, Channels and HR Sheets used for civil construction activity/ erection of machineries shall be allowed under the Cenvat Rules, 2004. 5. In our considered opinion, the matter is no longer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before this Court. 8. Even though Learned Standing counsel appearing for the Revenue submitted that the judgment in the assessee?s own case reported in AIT-2011-358-HC = 2012 (285) E.L.T. 341 (Mad.) (The Commissioner of Central Excise v. M/s. India Cements Limited) had been appealed against, as of today, there are no details; in any event, the fact, herein is that the Revenue does not controvert the facts found by the Assistant Commissioner that the impugned goods were used for fabrication of structurals to support various machines like crusher, kiln, hoppers, pre~heaters conveyor system, etc. and that without these structurals, the machinery could not be erected and would not function. 9. In the decision reported in AIT-2011- 35 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession components/ parts , with reference to the particular industry in question, the Apex Court rejected the appeal filed by the assessee. 11. Thus going by the factual finding, which are distinguishable from the facts found by the Authorities below in the case on hand, we have no hesitation in rejecting the Revenue-s appeal, thereby confirming the order of the Tribunal. 12. Learned Standing Counsel appearing for the Revenue pointed out that, the Tribunal had merely passed a cryptic order by referring to the earlier decisions. We do not think that this would in any manner prejudice the case of the Revenue, given the fact that on the identical set of facts, the assessee-s own case was considered by this Court and by following the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 65 of 2014, dated 10.7.2014, we are inclined to allow the appeal, thereby set aside the order of the Tribunal. Accordir1gly, this civil miscellaneous appeal stands allowed. No costs. Consequently, M.P.No.1 of 2011 is closed.' 7. Respectfully following the three Honble High Court decisions in the appellant-s own case cited supra, and also maintaining this Tribunal-s order in the case of Dalmia Cements (Bharath) Ltd. Vs CCE Trichy (supra), holding that immovability is not a criteria for denial of Cenvat Credit, we hold that appellants are eligible for Cenvat Credit on the capital goods used in Dry Process Cement Manufacturing Plant . Accordingly, the impugned order is set aside and the appeal is allowed. 6. After having h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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