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TMI Blog2022 (9) TMI 797X X X X Extracts X X X X X X X X Extracts X X X X ..... E AND CUSTOMS, CENTRAL EXCISE [ 2018 (5) TMI 305 - CHHATTISGARH, HIGH COURT] . The Commissioner (Appeals) has relied upon the decision of the Hon'ble High Court of Allahabad in UPPER GANGES SUGAR INDUSTRIES LTD. VERSUS COMMR. OF C. EX., MEERUT-II [ 2013 (8) TMI 501 - ALLAHABAD HIGH COURT] which actually analysis the definition of capital goods under the erstwhile MODVAT credit rules. The said definition is not applicable after 2004 and so the reliance placed on the said decision is misplaced. There is no dispute that the MS items were used for fabricating and installing paint plant within the premises of the appellant. The said paint plant is also integral to the manufacturing activity. After appreciating the facts and applying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upheld the same. Hence this appeal. 2. On behalf of the appellant, learned counsel Shri M.N. Bharathi submitted that as per Annexure to the Show Cause Notice, it can be seen that the period involved is from 28.1.2008 to 30.7.2008. The period is prior to 7.7.2009 on which date the restriction to avail credit on MS items used in fabrication of structures was introduced. In the present case, it is proved from facts that the appellant has used the MS items for putting up the paint plant in the premises. Appellant is engaged in the manufacture of automobile wheel rims and these final products cannot be marketed without the scientific and sophisticated painting. 3. The department had also contended in the Show Cause Notice that the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Sugar Industries Ltd. Vs. CCE, Meerut II reported in 2013 (293) ELT 186 (All.). In the said case, the decision was rendered under Rule 57Q of the erstwhile Central Excise Rules, 1944 whereas in the present case the law applied is CENVAT Credit Rules, 2004. The definition of capital goods in the erstwhile MODVAT credit rules is slightly different and therefore the said decision is not applicable to the present case. The lower authority had relied upon the decision in the case of Vandana Global Ltd. Vs. CCE, Raipur reported in 2010 (253) ELT 440 (Tri. LB) which held that the amendment brought forth in the definition of capital goods with effect from 7.7.2009 has retrospective effect. The said decision has been held to be wrong in law and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said definition is not applicable after 2004 and so the reliance placed on the said decision is misplaced. 9. The Hon'ble High Court of Madras in the case of India Cements Ltd. (supra) had observed as under:- 6. Learned counsel appearing for the assessee placed before this Court the decision in the case of Commissioner of Central Excise, Jaipur v. Rajasthan Spinning Weaving Mills Ltd., reported in 2010 (255) E.L.T. 481 to contend that the impugned goods are used in the erection of the capital goods and hence, the assessee is eligible for availing Cenvat credit. 7. Learned Standing Counsel appearing for the Revenue heavily relied upon the decision reported in 2011-TIOL-73-SC-CX (Saraswati Sugar Mills v. Commissioner of Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cement Manufacturing Plant. It is evident that MS Angles, MS Beams, MS Channels etc. were used in the erection of machineries it become component of the same, which are integral part of Dry Process Cement Manufacturing Plant. It is noted that Fly Ash handlish system is a pollution control equipment and particularly mentioned in Rule 2(a)(A)(ii) of Rules, 2004. The allegation in the above show cause notice that the Chapter Heading of these items were not covered under Rule 2(a) of the Rules, 2004, is not sustainable, in respect of pollution control equipments because the rule does not specify the tariff headings under which pollution control equipment should be falling. The appellant established that these items were used for erection of cap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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