Lloyds Metals & Engineers Ltd vs Commissioner Of Central Excise, Nagpur
- CitationAppeal No. E/1115/07
Ratio decidendi
The rule this decision rests on
Where MS bars, CTD bars and beams, taken as inputs, were used to set up a kiln cooler and chimney in the assessee's factory premises, the question of eligibility for Cenvat credit on those inputs is governed by the same principle the Tribunal applied in the assessee's own earlier appeal for a subsequent period, which followed the Supreme Court's decision in Rajasthan Spinning & Weaving Mills Ltd. and the Larger Bench decision in Vandana Global Ltd.; where the facts are identical and only the period differs, that principle is followed and the impugned order denying the credit is set aside.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out Order-in-Appeal No. SVS/188/NGP-C/2007 dated 15.05.2007 passed by the Commissioner of Central Excise (Appeals), Nagpur)
For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial)
1. Whether Press Reporters may be allowed to see No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy Yes of the Order?
4. Whether Order is to be circulated to the Departmental Yes authorities?
Lloyds Metals & Engineers Ltd. Appellant
Vs.
Commissioner of Central Excise, Nagpur Respondent
Appearance:
Shri Vipin Kumar Jain, Advocate with Shri Vishal Agarwal, Advocate for the appellant Shri V.K. Shastri, AC (AR) for the respondent
CORAM:
Honble Mr. M.V. Ravindran, Member (Judicial)
Date of hearing : 31.03.2015 Date of decision : 31.03.2015
O R D E R No:..
This appeal is directed against Order-in-Appeal No. SVS/188/NGP-C/2007 dated 15.05.2007.
2. The issue involved in this case is regarding eligibility to avail Cenvat credit on MS Bar, CTD bars, beams etc. taken as inputs which are used in the construction for supporting and setting up the kiln cooler and chimney in their factory premises of the appellant. Both the lower authorities are of the view that these inputs cannot be considered as capital goods and the kiln cooler and chimney which arise are permanently attached to the earth hence, Cenvat credit cannot be availed. The period involved in this appeal is from May 2005 to March 2006 during the period the appellant took the Cenvat credit.
3. Ld. counsel appearing on behalf of the appellant would take me through the Order-in-Original and Order-in-Appeal. He would submit that the Adjudicating Authority in para 14 has specifically recorded the finding that the items MS Bar, CTD bars, beams were used for foundations/structures for supporting the machinery. It is his submission that these items were never used for construction of factory building. He would submit that the issue is now squarely covered by the decision of the Hon'ble High Court of Madras in the case of India Cements in Civil Misc.Appeal no. 3101 of 2005 filed by the revenue. He would take me through the order of the Tribunal in India Cements 2012 (285) ELT 341 and submit that identical issue was in dispute before the Tribunal. Subsequently, he would take me through the judgment of the Tribunal in Ispat Industries Ltd. 2006 (195) ELT 164 (Tri-Mum) and Jindal Steel & Power Ltd. 2011 (263) ELT 557 (Tri-Del) and submit that identical issue is decided in favour of the assessee. He would then submit that this bench in the appellants own case, vide Tribunal order no. A/1074/14/SMB/C-IV dated 09.05.2014 for a subsequent period i.e. April to July 2006 has rejected the appeal filed by the revenue.
4. Ld. Departmental Representative reiterates the finding of the lower authorities.
5. On perusal of the records, I find that issue is correctly stated by both sides i.e. eligibility to avail Cenvat credit on MS Bar, CTD bars, beams which were used for setting up the kiln cooler and chimney in their factory.
6. It is undisputed that items were used for setting up the kiln cooler and chimney in their factory building or any other premises. I find strong force in the contention raised by the ld. counsel that in final order dated 09.05.2014 in the appellants own case, this bench has held in favour of the assessee by considering the Larger Bench decision of the Tribunal in Vandana Global Ltd. 2010 (253) ELT 440(Tri-LB) as well as the Apex Court judgment in the case of Rajasthan Spinning & Weaving Mills Ltd. 2010 (255) ELT 481 (SC). Following the ratio laid down by the Apex Court in Rajasthan Spinning & Weaving Mills Ltd. (supra), the bench has rejected the appeal filed by the Revenue.
7. As the facts involved in that case and the case in hand are identical and in respect of very same assessee only period being different; respectfully following the same, the impugned order is unsustainable and liable to be set aside and I do so.
8. Impugned order is set aside and the appeal is allowed.
(Pronounced in Court)
(M.V. Ravindran) Member (Judicial)
//SR
4
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