HIGH COURT OF CHHATTISGARH AT BILASPUR B. HON’BLE SHRI DHIRENDRA MISHRA, 8; HON’BLE SHR! R.N CHANDRAKAP, J J Union of lndla _ Thmugh Pamms sow: Central Exc§sn and Appellant Custom$ Centrai txcnse Bnawan Dhamtan Road Hkaraparax Raipur (6(a) 492 001 Versus Respondent M/s Associated Cement Company Limited. Jamu! Cement Werks Dim. Burg (CG) Mr Bhishma Kmger counsei for the appeilantirevenue Mr Shashank Dubey, Sf Advccate With Mrs Smm Sharma younselfor the respondentiassessee GRAL JUDGMENT ' (5m Gamay, 20m) Per Dhirendra Mishra, J Revenue‘s appeal under Section 35G of the Centrat Excise Act, 1944 againSt the impugned order of Customs Excise & Semce Tax Appeiiate Tribunal Principal Bench, New Deihi (in short ‘fthe Tribunai") has been admitted for hearing on the foiiowing substantial questions of law: Whether the teamed Appeitate Tribunal has erred in allowing the appeal to the respondent and allowing them credit on the impugned items? 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 period from October 2002 to April 2003? And if not, then is it correct that the same were not entitled to Modvat credit as riot being “Capital Goods"? Cenvat credit was disallowed to the respondentfassessee on the capital goods namely‘ HRSS Piates, MS Plates and MS Flat, Angles, Channels during the period from October: 2002 to March, 2003. The appeal preferred by the assessee has been further dismissed by the Commissioner (Appeals) Vide Annexure M6. However, the Tribunal allowed the appeal of the assessee by relying upon the decision of the Mumbai Tribunal in the case of {spat industries Ltd. Vs. CCE, Mumbai reported in 2006 (195) ELT 164, wherein it has been held that structural items such as angies and channets, plates: rods D etc. required to make machines function without any vibration or movement, cannot be eaid to be used in construction of buiidings but iinked with’ machinery used in production of finai products‘ and. therefore the Cenvat credit is admissible. 3. ML Shashank Dubey, ieamed Sr. Advocate with Mrs. Smiti Sharma. Advocate. appearing for the respondent/assessee, reiying upon the latest decision of the Hon'bie Supreme Court dated 9‘“ July, 2010 passed in Civil Appeal No.3760/03 in the matter of Commissicner of Central Excise, Jaipur Vs. Mfs Rajasthan Spinning & Weaving Miiis Ltd., argued that the issue sought to be raised by the revenue in this appeal stands conctuded in favour of the assessee. Reliance is also placed on the decision of the Supreme Court in the matter of CCE, Coimbatore & ars. Vs. Jawahar Miils Ltd. & ors.., reported in {2001) 6 SCC 274. 4. Mr. Bhishma Kinger. teamed counsei for the appeliantirevenue fairly agrees that the issue involved in this‘ appeal has been finally decided by the Hon’ble Supreme Court in the above iudgments in favour of the assessee. 5. in the matter of Rajasthan Spinning & Weaving Mills Ltd. (supra), the Hon'ble Supreme Court relying upon‘its eariier judgment in Jawahar Miils Ltd. (supra) held in para 14 of the judgment that the assessee was entitied to avail of Modvat credit in'respect of the subject items viz. steel plates and MS. channels used in the fabrication of chimney for the diesel generating set, by treating these items as capital goods in terms of Ruie 57G of the Rules. 6, in the instant case also, the Tribunai has held that the assessee was entitled for Cenvat credit on capital goods namely, HRSS Plates, MS Plates and MS Fiat, Angles, 'Channeis used for connecting/fitting fans, casing, ducting in kilns for the manufacture of intermediate product ‘ciinker’. 7. We are, therefore, of the considered opinion that the Tribunal was correct in law in holding that the assessee was entitled to avail of Cenvat credit in respect of the above subject items. 8. For the aforesaid reasons, we find no substance in this appeai, the M Sd/- rxj’sJ" Sd/- Dhirendra Mishra i RN, Chandrakar Judge Judge