..fSBSSB: H1GH COURT OFCWHATTISQARH AT BILASPUR D.B. HON'BLE SHRI DHIRENDRA MISHRA, & HON'BLE SHR! R.N. CHANDRAKAR. J J Tax CaseNo.8of2008 AppeLlant : Union of india, Through Comrriissioner, Certral Excise Customs, Centrai Excise Bhawan, Dhamtari Tikarapara, Raipur (CG) 492 001. Cti 'l^'i Road, Versus Respondent M/s Associated Cement Company Limited, Jamul CementWorks Distt. Durg (CG) Present: Mr. Bhishma Kinger, counsel for the appeilantf'revenue. Mr. Shashank Dubey, Sr. Advocate w'sth Mrs. Smiti Sharma, counsei for the respondent/assessee. (6th October,2010) Per Dhirendra Mishfei, J Revenue's aooeal under Section 35G ofthe Centrai Excise Act, 1944 against the impugned order of Customs Excise & Service Tax Appeiiate Tribunai, Principal Bench, New Delhi (in short "the Tribunai") has been admitted for hearins on the foilowina substantjal questions of law: "1. Whether the tearned Appeliate Tribunai has erred in allowing the appeat to the respondent and aliowmg them credit on the impugned items? 3. Whether the items, as specified in the memo of the appeal, were defined as "Capital Goods" in terms of Rule 2(b) of the Cenvat Credit Rules, 2002 during the perioa from April, 2004 to Juty, 2004?" if not, then the impugned order (Annexure A/1) is iiable to be set aside and the Order-in-Origina! (Annexure A/3) and Order-in-appeat (Annexure A/4) be uphetd and accordingly restored?" 2. Modvat credit was disaiiowed to the respondent/assessee on the capital goods namely, P!ate,'Piate MiSI PSate, iVJ.S. Angle/SVIST Angle, Angie, M.S. team, M.S. Channel ete. The appeal preferred by the assessee has been further dismissed by the Commissioner (Appeals) vide Annexure A/4. However, the Tribunal allowed the appeai of the assessee by relying upon the decision of the Mumbaj Tribunai in the case of tspat IncSustries Ltti. Vs. CCE, Mumbai reported in 2006' ff85} ELT 1S4, wherein it has been held that structurai items such as angies and channeis, plates, rods ete. required to mak®machines function wrthout any vibration or movement, cannot be said to 9 •fSSff'^ ( £'"'\ be used in construction of buiklings but linked with machinery used in production offinal products, and, therefore, the Cenvat credit is admissibie. 3. Mr. Shashank Dubey, learned Sr. Advocate with Mrs. Smiti Sharma, Advocats, appearing for the respondent/assessee, relying upon the latest decision of the Hon'ble Supreme Court dated 9 July; 2010 passed in CMI Appeal No.37SO/03 in the matter of Commissioner of Central Excise, Jaipur Vs. U/s Rajastfian Spinning & Weaving Mills Ltd., argued that the issue sought to be raised by the revenue in this appeal stands conciuded in favourofthe assessee. Reiiance is also placed on the decision of the Supreme Court in the matter of CCE, Coimbatore & ors. Vs. JawahsrMills Ltd. & ors.. reported in 4. Mr. Bhishma Kinger, iearned counsel for the appellant/revenue fairly agrees that the issue involved in thjs appeal has been finaily decided by the Hon'bts Supreme Court in the above judgments in favour of the assessee. 5. In the matter of Rajasthan Spinning & Weaving Mills Ltd. (supra), the Hon'ble Supreme Court relying upon its earlier judgment in Jawahar Mills Ltd. (supra) held in para 14 of the juctgment that the assessee was entitted to avail of Modvat credit in respect of the subject items viz. steel plates and M.S. channels used in the fabrication of chjmney for the dieset generating set, by treating these items as capital goods in terms of Rute 57Q ofthe Rules. 6. In the instant case atso, the Tribunal, in view of its eartier decision in respondent's own case in Appeal No.E/585/2005 vide Final Order No.452/07- SM dated 26-2.2007 wherein the assessee has been held to be entitled for Modvat credit on capital goods namely, Wear Plate, HRSS Piate, MS Piate, Angies, Channeis ete. used for connecting/fitting fans, casing, ducting in kilns for the manufacture of intermediate product 'clinker', allowed the appeal of the assessee. 7. We are, therefore, of the considered opinion that the Tribunal was correct in law in hotding that the assessee was entitted to avail of Modvat credit in respect ofthe above subject items. 8. For the aforesaid reasons, we find no substance in this appeal, the same deserves to be and is, accordingly, dismissed. _ ____ Sd/- Sd/- Dhirendra Mishra Judge R.N. Chandrakar Judge ^s ^.sm.