G.M. Akbar Ali, J.@mdashThis Civil Miscellaneous Appeal has been filed under Section 35G of the Central Excise Act, 1944 challenging the order, dated 8-5-2013 made in Final Order No. 40179 of 2013 on the file of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), South Zonal Bench, Chennai [2013 (296) E.L.T. 513 (Tribunal)]. The substantial question of law raised before this Court is as follows:
"Whether the Tribunal is correct in holding that structural steel items viz., M.S. Plates, Angles, Channels and HR Sheets used for civil construction activity, are capital goods eligible for credit in terms of Rule 57Q as it stood at the relevant time?"
2. The first respondent herein/assessee is a manufacturer of cement falling under Chapter 25 of the Central Excise Tariff. The assessee availed Cenvat Credit on capital goods used in the erection of various capital goods, viz., new additional ESP for raw mill project, additional fly ash handling system, MMD Crusher etc and utilizing the credit for payment of duty on clearance of excisable goods from their unit. They also used M.S. Angles, M.S. Beams, M.S. Channels and TMT bars for the erection of new plant and machineries in their factory and treated the same as components.
3. A Show cause notice, dated 19-2-2009 was issued by the Department stating that these are not capital goods and a demand was made on these goods. Reply was sent by the assessee objecting to the demand on 13-3-2009. Rejecting the contention of the assessee, the Assessing Officer confirmed the said demand of Rs. 53,23,756/-, which includes Cenvat of Rs. 51,86,528/- Edu. Cess - Rs. 1,03,724/- and S & HE Cess - Rs. 33,504/-, under proviso to Section 11A(1) of the Central Excise Act, 1944 and with Rule 14 of the Cenvat Credit Rules 2004 along with interest and penalty. Aggrieved by which the assessee preferred an appeal before the Appellate Tribunal.
4. The Tribunal considered the contention of the assessee as well as the Revenue and held that the assessee satisfied the user test. The Tribunal, while allowing the appeal, followed the earlier order of this Court and the law laid down in the case of
"7. In the present case, it is seen that the items in question were used in the erection of various machineries such as, new additional Electrostatic Precipitator for raw mill project, additional fly ash handling system, MMD crusher etc. for the Dry Process 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 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 capital goods namely Dry Process Cement Manufacturing Plant, which falls under Chapter 84, as mentioned in Serial No. (i) of Rules 2(a)(A). Thus, the items in question are covered in serial No. (iii) of Rules 2(a)(A) of the Rules, C.B.E. & C. has clarified that all parts, components, accessories which are to be used with capital goods in serial (i) and (ii) of Rules 2(a)(A) and classifiable under any chapter heading are eligible for availment of Cenvat credit. A plain reading of serial (iii) cannot lead to a different conclusion either.
8. After considering the use of the goods in question, in our considered view, the present case is covered by the decision of the Hon''ble Madras High Court in appellant''s own case as referred above. We have also noticed that the Hon''ble Supreme Court in the case of Rajasthan Spinning and Weaving Mills Ltd. (supra) as relied upon the Hon''ble High Court in the appellant''s own case, allowed Modvat credit on MS channels, steel plants etc. as capital goods used for erection of chimney for diesel generating set. The findings of the Commissioner that these are structures fixed to earth with concrete foundations and are immovable appears to be beyond the scope of the show cause notice. So, the case of M/s. Triveni Engineering & Industries Ltd. (supra) as relied upon by the learned AR is not applicable in the present case."
5. Aggrieved by the order of the Tribunal, the Revenue has preferred the present appeal.
6. Learned Standing Counsel appearing for the Revenue heavily relied upon the decision reported in
"8. Even though learned standing counsel appearing for the Revenue submitted that the judgment in the assessee''s own case reported in
9. In the decision reported in
10. As far as the reliance placed by the Revenue on the decision reported in 2011 (270) E.L.T. 465 (S.C.) (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 reported in
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 decision reported in
7. From a perusal of the above said judgment, it is seen that there is no change in the circumstance and this Court had already considered the issue and held that the decision reported in
