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TMI Blog2021 (3) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... e had an occasion to consider similar questions in the case of Dalmia Cements (Bharat) Ltd. vs. CESTAT, Chennai Ors., [ 2021 (1) TMI 927 - MADRAS HIGH COURT ], wherein the civil miscellaneous appeal filed by the assessee was allowed, by holding that In the light of the recent decision of the Hon'ble Division Bench of this Court in the case of M/S. INDIA CEMENTS LTD. VERSUS THE CUSTOM, 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 assessee - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n framed for consideration in this appeal, have been answered in favour of the assessee in the case of Commissioner of Central Excise vs. India Cements Ltd., [2020 (9) TMI 1158 (Madras)]. 5.We had an occasion to consider similar questions in the case of Dalmia Cements (Bharat) Ltd. vs. CESTAT, Chennai Ors., [(2021 (1) TMI 927 (Madras)], wherein the civil miscellaneous appeal filed by the assessee was allowed. The operative portions of the judgment read as follows:- 4. We need not labour much to answer the substantial questions of law framed for consideration in the light of the recent decision of the Hon'ble Division Bench of this Court in the case of CCE Vs. India Cements Ltd. [CMA.No.1629 of 2016 dated 30.9.2020] wherein an identical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory shed. buildings or laying foundation or making structures for support of capital goods? vide Not.No.16/2009-C.E (N.T) dated 7/7/2009 being clarificatory in view of already existing explanation 2 to Sec.2 (k) of CENVAT Credit Rules, 2004 and therefore, operates retrospectively? 3. The Hon'ble Supreme Court with reference to availing of Cenvat Credit under the new Rule 2004 which substituted the earlier Modvat Rules, clearly held in para 25 of the Judgment which is quoted below that the Cenvat Rules which is in effect substitutes the Modvat Rules and the decision of the Hon'ble Supreme Court in Jaypee Rewa Cement case would continue to apply and the decision of the Supreme Court in the case of J.K.Udaipur Udyog Limited holding to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the construction of their Dry Process Cement Manufacturing Plant . On perusal of records, and the OIO, we find that credit was denied only on the ground that these items were used in the construction of the cement plant. Adjudicating authority has denied credit on the ground that the term plant is not defined as capital goods in the CCR. We find that on an identical issue of the same appellant, this Tribunal in two different appeals had already allowed the appeals and the Revenue preferred C.M.As. against the Tribunal-s order. The Honble Madras High Court in both the orders in the case of CCE Trichy Vs India Cements Ltd. 2014 (305) ELT 558 (Mad.), and CCE Service Tax Vs India Cements Ltd. 2014 (310) ELT 636 (Mad.) had dismissed the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and M.S. Channels used in the fabrication of chimney would fall within the ambit of capital goods? In the face of this decision in the assessee's own case there being no new circumstance or decision in favour or the Revenue, we do not find any good ground to take a different view herein too. 10. As far as the reliance placed by the Revenue on the decision reported in 2011 (270) ELT 465 (SC) (Saraswati Sugar Mills v. Commissioner of C.Ex., Delhi-III) is concerned, we do not think that, the said decision would be of any assistance to the Revenue, considering the factual finding by the Tribunal therein in the decided case that the machineries purchased by the assessee were machineries themselves. Thus, after referring to the decision repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble High Court in a recent decision reported in 2015 (321) ELT 209 (Mad.) on an identical issue had allowed the C.M.A. filed by the very same appellant. The relevant portion of this Hon'ble Madras High Court order is reproduced as under : '13. The present appeal is also in respect of the very same assessee and therefore we find no distinguishable fact or issue contrary to the earlier decision of this court. 14. It is relevant to note that this Court in the decision reported in 2014-TIOL-1185-HMad-CX = 2014 (310) E.L.T. 636 (Mad.) in respect of the very same assessee in C.M.A. No.1265 of 2014, following the abovesaid decision of this Court, dismissed the appeal filed by the Revenue. 15. Accordingly, following the principles l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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