IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 6TH FEBRUARY 2009 / 17TH MAGHA 1930 C.E.Appeal.No. 7 of 2009 -------------------------- APPELLANT: -------------- THE COMMISSIONER OF CENTRAL EXCISE CALICUT COMMISSIONERATE, C.R BUILDING, MANANCHIRA, CALICUT. BY ADV. SRI.TOJAN J.VATHIKULAM,SC,C.B. EXCISE RESPONDENT: --------------- M/S. MALABAR CEMENTS LTD., WALAYAR, PALAKKAD, THIS CENTRAL EXICISE APPEAL HAVING BEEN FINALLY HEARD ON 06/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & K. SURENDRA MOHAN, JJ. -------------------------------------------- C.E. Appl. No. 7 OF 2009 -------------------------------------------- Dated this the 6th day of February, 2009 JUDGMENT Ramachandran Nair,J. Appeal is filed with a delay of 204 days. The inordinate delay caused in filing the appeal by the Government is not explained. We have considered the case on merits also. It is seen that the appeal is preferred against the order of the Tribunal. Respondent claimed Cenvat credit in the making of capital structure. Appellant has no dispute that the use of cement for making capital goods entitles the respondent for Cenvat credit. Since the tribunal has given a clear cut finding that the item involved was used for making structures being capital in nature, there is no case on merits for the appellants. We, therefore, dismiss the delay condonation petition and consequently the appeal. (C.N.RAMACHANDRAN NAIR) Judge. (K. SURENDRA MOHAN) Judge. ttb 2