Custom, Excise & Service Tax Tribunal
Mangalam Cement Ltd vs Udaipur on 10 April, 2023
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CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI.
PRINCIPAL BENCH - COURT NO. III
Excise Appeal No. 52974 of 2018
(Arising out of order-in-appeal No. 574(CRM)CE/JDR/2017 dated 13.06.2018 passed
by the Commissioner (Appeals), Central Goods & Service Tax and Central Excise,
Jodhpur).
M/s Mangalam Cement Limited Appellant
PO Aditya Nagar, Morak
Distt - Kota.
VERSUS
Commissioner, Central Goods, Excise Respondent
& Service Tax
142-B, Hiran Magri, Sector-11
Udaipur.
APPEARANCE:
Sh. B. L. Narasimhan and Ms. Sukriti Das, Advocates for the appellant
Sh. Rakesh Agarwal, Authorised Representative for the respondent
CORAM:
HON„BLE SH. P. V. SUBBA RAO, MEMBER (TECHNICAL)
HON‟BLE MS. BINU TAMTA, MEMBER (JUDICIAL)
FINAL ORDER NO. 50454/2023
DATE OF HEARING: 16.03.2023
DATE OF DECISION: 10.04.2023
BINU TAMTA:
The appellant/ assessee has filed the present appeal
challenging the order of the Commissioner (Appeals) dated 13.06.2018
confirming the order of the adjudicating authority disallowing the C
ENVAT credit and confirming the demand towards its recovery.
2. The appellant is engaged inter- alia, in the manufacture of
cement and clinker falling under Chapter 25 of the Central Excise Act,
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1985 and has been availing cenvat credit on inputs, capital goods and
input services under the provisions of Credit Rules, 2004, hereinafter
referred to as the Rules. The appellant had set up another unit, i.e.,
Manglam Grinding Unit (MGU) which was located at a distance of about
2 kms from the existing original unit on a single piece of land.
3. The appellant vide letter dated 23.01.2014 had approached
the department for granting common registration in respect of both the
original unit as well as MGU. Initially the Original Registration
Certificate was amended on 31.01.2014 so as to include the extended
unit, MGU, however the department subsequently changed its stand
and challenged the said order. The issue of registration was finally
decided both by the Tribunal as well as by the High Court of Rajasthan
vide order dated 06.11.2015 and 25.05.2016 respectively, in favour of
the appellant whereby the common registration granted was
approved.
4. On examination of the monthly ER-1, it was noticed that
the appellant had availed the cenvat credit on input services which
were actually used by them in the setting up of their new unit MGU
which is not admissible after amendment of the definition of input
service w.e.f 01.04.2011. On examining the details, it was observed
that the appellant had included all the bills and payments made from
October 2013 to 03.02.2014 in respect of various services specified
though the commercial production started only from
24.02.2014, which means that they were used by them in setting up
of the new unit, namely MGU. Accordingly, Show Cause Notice dated
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26.08.2015 was issued for the period October 2013 to February 2014,
as the department was of the view that the appellant had wrongly
availed the cenvat credit amounting to Rs 1,36,25,467/- on the
services used in setting up of the new plant, namely MGU.
5. That both the adjudicating authority vide order dated
14.02.2017 and the Commissioner (Appeals) as per the impugned
order dated 13.06.2018 disallowed the credit solely on the ground that
the definition of 'input service' under Rule 2(l) has been amended
w.e.f. 01.04.2011, thereby the words input services relating to 'setting
up' have been omitted vide Notification No. 3/2011-CE (NT) dated
01.03.2011. Also, under the exclusion clause of the definition of input
service the 'construction services' have been specifically added and
therefore the credit has to be disallowed. Being aggrieved, the
appellant has filed the present appeal before this Tribunal.
6. We have heard the learned Counsel for the appellant and
also the authorised representative for the revenue and have perused
the records of the case.
7. The allegations in the show cause notice that the two units
were earlier separate and independent and obtained the common
registration only on 31.01.2014, therefore cenvat credit on the
services availed prior to registration is not admissible, is unsustainable
in view of the decisions of the Tribunal in the case of the appellant
itself. The Bench of this Tribunal in the Final Order No. 53004/2017
dated 23.02.2017 taking note of the order of the High Court approving
the single registration for both the units, held:
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"7. The procurement of capital goods as well as utilization of input
services for setting up the MGU happened prior to setting it up. The
question of registration of the completed unit comes up after the unit is set
up and is ready to start manufacturing. It would be incorrect to deny the
Cenvat credit on such capital goods and input services by taking the view
that it has been availed prior to the date of registration. This position is too
well settled for taking a contra view. It is on record that the appellant has
approached the department on 30.08.2013 for formally amending the
registration certificate for the original unit to include MGU. Further, since
the MGU has been commonly registered as part of the main unit by issue of
a common registration, any credit which would have been in the books of
MGU would stand merged with that of the combined unit. There is no
requirement in the Cenvat Credit Rules that prohibits a common Cenvat
account for all the units comprised in one registration. We note that the
Hon‟ble Madras High Court in the case of Rajshree Sugars & Chemicals Ltd.,
-2014 (299) ELT 277 (Mad.) (supra) has considered a case where the facts
are similar to the present case stands decided in favour of the assessee.
The Madras High Court considered a case where a sugar unit and distiller
unit had separate registration certificates, but situated within the same
premises under the same management. The dispute in that case is also
with reference to issue of a single registration and merger of credits in the
two units. The Hon‟ble Madras High Court decided the issue as follows:
"We agree with the contentions made by the ld. Counsel
appearing for the assessee. As already seen in the preceding
paragraph, the sugar unit and the distillery unit belonged to the self-
same management and they are in the same premises. Although there
are two units functioning, it is not denied by the Revenue that the
resultant Molasses from the manufacture of sugar was used by the
assessee in the manufacture of denatured Ethyl Alcohol. Although in
respect of two activities, it had maintained two accounts, yet, it related
to the business of the same assessee in respect of two activities, which
are interconnected too. In the circumstances, the assessee decided to
go for one registration alone as against two registrations originally
taken. This decision was in tune with the management, administration
and control of two units under the same head. In the above
circumstances, we do not find any logical reason to accept the plea of
the Revenue that on the mere taking of a single registration as against
the two registrations, there was merger or amalgamation or transfer to
hold that the assessee would not be entitled to any credit adjustment
on the duty payable on sugar manufactured".
We are of the view that the decision of the Hon‟ble Madras High Court
is squarely applicable to the facts of the present case".
The aforesaid decision has been subsequently followed by the Tribunal
in rejecting the Appeal filed by the department, vide Final Order No.
50785 of 2019 dated 07.01.2019 titled as CCE & GST, Udaipur Vs.
Manglam Cement Limited. Therefore, the findings of the authorities
below that the services in dispute were received & used by them for
setting up of their new unit prior to beginning of production on the
ground that the application for common registration was made only on
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23.01.2014, the same was granted on 31.01.2014 and they started
dispatching cement w.e.f. 22.02.2014, is absolutely unsustainable.
8. The main issue in the present case is whether the appellant
rightly availed the cenvat credit on input services used by them in
connection with setting up of their new unit which has been deleted
from the inclusion part of section 2(l) post amendment of the definition
of 'input service', w.e.f. 01.04.2011.
9. The above issue is no longer res integra as the same has
been decided in favour of the assessee by various Benches of the
Tribunal in several decisions, Hindalco Industries Ltd., vs.
Commissioner, Central GST, Central Excise & Customs, Jabalpur
-2019 (5) TMI 1620 -CESTAT New Delhi, Commissioner of
Central Excise, Kolkata-III vs. M/s Texmaco UGL Rail (P) Ltd.,
(Now known as Texmaco Hi-Tech Pvt. Ltd., (Vice-Versa) -2019
(7) TMI 1651 -CESTAT Kolkata, Kellogs India Pvt. Ltd., vs.
Commissioner of Central Tax, Tirupathi GST -2020 (7) TMI 414
-CESTAT Hyd., PepsiCo India Holdings (Pvt.) Ltd. vs.
Commissioner of Central Tax, GST, Tirupati -2022 (56) GSTL 22
(Tri. Hyd.) and Hindustan Zinc Limited vs. Commissioner of
CGST, Excise Customs, Udaipur -2021 (8) TMI 872 -CESTAT-
New Delhi after considering the provisions of section 2 (l) of the
Finance Act, 2004 both pre and post amendment.
10. Referring to these decisions, the submission of the learned
Counsel for the appellant is that omission of the words 'setting
up' from the inclusive clause of the definition of 'input service' does
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not render the credit on services used in relation to plant and
machinery ineligible. He further relied on the principle enunciated in
the various decisions, to say that the Appellant is eligible for cenvat
credit on the input services under the means clause "used in or in
relation to the manufacture of final product" of the definition of input
service even after the amendment in the definition of the input service
as the 'means clause' continues to be the same as before the
amendment.
11. For reference, we would like to take note of the
observations made by the Tribunal in the earlier decisions on the
eligibility of cenvat credit after the amendment of the definition of
'input service', excluding the setting up process of a factory from the
inclusive part of the definition, w.e.f. 01.04.2011. In the case of
Hindustan Zinc Ltd., (supra) it has been held:
"37. As noticed above, emphasis has been placed by the appellant on the
„means‟ clause of the definition of „input service‟ under rule 2(l) of the Credit
Rules. The Department however has placed emphasis on the „includes‟ clause
of the definition as also the „excludes‟ clause of the definition of „input
service‟. The decision of the Tribunal in Pepsico India Holdings, on which
reliance has been placed by the appellant, also interpreted the „means‟ clause
of the definition of „input service‟. It would, therefore, be appropriate to
consider this decision.
38. What came up for decision before the Tribunal in Pepsico India
Holdings was whether the appellant was entitled to CENVAT credit on the
„input services‟ used in the „setting up‟ of the plants. In particular, what was
considered was whether „setting up‟ of the plants would be a service falling in
the „means‟ clause of the definition of „input service‟, even if „setting up‟ was
deleted from the „includes‟ clause of the definition of „input service‟ w.e.f.
01.04.2011. The Tribunal observed that the definition of the „means‟ part of
the definition was very wide and services used in „setting up‟ of the factory
would be covered under the „input services‟, under rule 2(l) of the Credit Rules
in the „means‟ part of the definition of „input service‟ even if the said service
had been deleted from the „includes‟ part of the definition of „input service‟.
The relevant portion of the decision is reproduced below:
"11. Before 1.4.2011, the term „input service‟ had number of types of
services included in the main part of the definition and then it had a
„inclusive‟ part of the definition which specifically provided for credit of
service tax paid on services used in setting up of the plant. After
1.4.2011, the definition was revised and it had three parts, the main
part, an inclusion part and an exclusion part. The cenvat credit on
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input services used in setting up of the plant was neither in the
inclusive part of the definition nor in the exclusive part of the
definition. However, he would argue that these services were
necessary to set up the plant and manufacture the goods. Thus,
these services are directly connected to the manufacture of the
goods and hence they are covered in the main part of the
definition of the „input service‟ after 1.4.2011 and therefore
credit is available even though such services were no longer
specifically in the inclusive part of the definition. Such a view was
taken in the case of Kellogs by this Bench and in other cases cited
above. He, therefore, prays that the appeals may be allowed and the
impugned orders may be set aside.
12. Learned Departmental Representative vehemently opposes
these arguments and supports the impugned orders and asserts that
since the services related to setting up of a factory were removed from
the inclusive part of the definition, it would mean no CENVAT credit
was available. On a specific query from the bench, he submits that in
the case of Kellogs this Bench held that CENVAT credit was available
and the Revenue has appealed against the order which appeal is
pending before the High Court of Andhra Pradesh for admission.
xxxxxx
15. The department wants to deny them the benefit of the
CENVAT credit on the ground that „services related to setting up
of a factory‟ which were specifically included prior to 1.4.2011
were no longer specifically included post 1.4.2011.
16. We find that the definition of „input service‟ prior to 1.4.2011
had two parts- a main part of the definition and an inclusive part of the
definition. This inclusive part specifically included the services availed
for setting up the factory. After 1.4.2011, it has three parts- a main
part, an inclusive part and an exclusive part. The services used for
setting up the factory are neither in the inclusive part of the definition
nor the exclusive part of the definition. Therefore, such services were
neither specifically included nor were specifically excluded.
17. It takes us to the main part of the definition which must
be examined. If it is wide enough to cover the services in
question, CENVAT credit will be available, otherwise it will not
be available. The main part includes "services used by a
manufacturer, whether directly or indirectly, in or in relation to
the manufacture of final products and clearance of final
products up to the place of removal." The term manufacture is not
defined in the Rules.
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21. For a service to qualify as „input service‟ under CENVAT Credit
Rules, 2004 post 2011, the service in question need not be covered
even by the very wide definition of manufacture under section 2(f) of
the Central Excise Act. Any service which is used not only in
manufacture but also „in relation to‟ manufacture will also
qualify as input service. The scope of input service is further
enlarged with the expression whether directly or indirectly
used in the definition of input service. Thus, there are:
a) Actual manufacture;
b) Processes incidental or ancillary to manufacture which are also
manufacture;
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c) Activities directly in relation to manufacture (i.e., in relation to „a‟
and „b‟ above);
d) Activities indirectly in relation to manufacture (i.e., in relation to „a‟
and „b‟ above);
22. All four of the above qualify as input service as per Rule 2(l) (ii)
as applicable post 1.4.2011. Although setting up the factory is not
manufacture in itself, it is an activity directly in relation to
manufacture. Without setting up the factory, there cannot be any
manufacture. Services used in setting up the factory are,
therefore, unambiguously covered as „input services‟ under
Rule 2 (l) (ii) of the CENVAT Credit Rules, 2004 as they stood
during the relevant period (post 1.4.2011). The mere fact that
it is again not mentioned in the inclusive part of the definition
makes no difference. Once it is covered in the main part of the
definition of input service, unless it is specifically excluded
under the exclusion part of the definition, the appellant is
entitled to CENVAT credit on the input services used. This Bench
has already taken this view in Kellogs. Similar views have been
taken by the other Benches in the other cases mentioned above."
(emphasis supplied)
39. It needs to be noted that in Kellogs India Pvt. Ltd vs. Commissioner of
Central Tax, Tirupathi9 , the Tribunal observed:-
"11. Therefore, we find that the services used in relation to setting up
of a plant are neither specifically included nor specifically excluded
during the relevant period. That takes us to the main part of the
definition which, with respect to manufacturer allows CENVAT credit of
services used in or in relation to manufacture whether directly or
indirectly. This definition, in our considered view, is wide enough to
cover in its compass any services used for setting up a Plant especially
when the services are used for obtaining the land on lease. Without
such land no factory can be set up nor can any manufacture take
place. We find a direct nexus between the manufacture of the final
products and the services used for setting up of plant by leasing the
land."
12. The findings recorded above are squarely applicable to the
facts of the present case and therefore we do not find any justification
in denying the benefit of cenvat credit to the appellant. Here MGU was
a part of the existing unit itself. The services so utilized for setting up
of the factory which were availed prior to the commencement of
production shall fall within the „means clause‟ of the definition of „input
service‟, which has been held to be wide enough to allow cenvat credit
of services used in or in relation to manufacture whether directly or
indirectly. It is pertinent to appreciate that grinding unit was set up so
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as to utilize the excess production of clinker in the main fatory and
applying the principle laid down in the case of Kellogs (supra), there is
a direct nexus between the manufacture of the final product & the
services used for setting up the grinding unit, MGU.
13. The findings of the authorities below that services related
to Erection, Commissioning & Installation services, Works Contract
service & hiring of JCB & Earth Moving machinery service have been
received in relation to construction activity which under the exclusion
clause (A) under Rule 2(l) are not admissible services to avail cenvat
credit cannot be sustained as these services have been utilized for
installation of plant & machinery & for augmentation of existing track
capacity at railway siding of MGU for inward transport of inputs &
outward clearance of goods & not for constructing any building or civil
structure. Referring to the meaning of the term construction as per
the Finance Act, 1994, the Tribunal in Reliance Industries Ltd., vs.
CCE&ST Rajkot -2022 (4) TMI 729 CESTAT Ahmedabad, held:-
"4.4 From the above meaning of construction it is clear that the
construction means commercial or industrial construction of a building or a
civil structure or a part thereof. However, the exclusion provided in the
definition in respect of roads, airports, railway, transport terminal, bridge,
tunnel, and dam etc. further reinforce the contention of the appellant that
only those constructions which is in respect of building and civil structure will
fall under construction. However, in the present case the ECIS services were
not used for construction of building or a civil structure, it is admittedly used
for erection installation of plant and machinery therefore the ECIS were not
used for construction of building or civil structure".
----
There is no dispute that the ECIS service is in respect of technological, mechanical or industrial structure, the fabrication of such structure by any stretch of imagination cannot be construed as construction of civil structure. As per the Finance Act, 1994 reference to civil structure is construction using still, cement, sand etc. and to a similar building, road, dam, airport etc., therefore there is a vast difference between the civil structure, building, etc. and technological structure which in the present case, the appellant have erected and installed by using ECIS".
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14. The contention of the learned Counsel for the appellant that the services received by them can be assessed on the basis of the invoice received by them, i.e., service recipient and the same cannot be reassessed at their end for denying the cenvat credit, deserves to be accepted. The Apex Court in Sarvesh Refractories Pvt. Ltd., Vs Commissioner of Excise and Customs 2007 (218) ELT 488, dealing with the issue of classification by the manufacturer and the supplier of the goods under a particular heading was please to hold that the appellant who is the consumer of those goods could not get the classification of the manufacturer change. Similarly, the case of Commissioner C. Ex. Vs. Manglam Cement Ltd 2017 (47) STR 349, holds that it is well settled position of law that the credit availed by an assessee cannot be denied or varied on the ground that the classification of service should have been made in a different category by the provider of service. Variation in the classification or consequent rate of payment of service tax is not possible at the end of the recipient of service. In a recent decision, the Tribunal in Reliance Industries Ltd Vs. CCE & ST, Rajkot 2022 (4) TMI 729, has observed that classification of service cannot be disturbed or challenged at the end of the service recipient and particularly for denial of cenvat credit. Once the classification is finalised at the end of the service provider the same cannot be altered at the end of the service recipient. We find no reason to take a contrary view as against the settled principles of law holding the field. Consequently, the cenvat credit cannot be denied to the appellant on this ground. 11
15. The learned Counsel for the the appellant in the written submissions have submitted a chart giving details of the services on which they had availed the cenvat credit and justified the same relying on the decisions mentioned therein. We have gone through these decisions with reference to the respective services and find merit as to the eligibility of the cenvat credit. The said chart is given below:-
Consulting Engineer Services for preparation Pepsico India Holdings Pvt. Ltd. v.
of detailed project report, engineering, Commissioner of Central Tax, Tirupati, 2022
designing and project management (56) GSTL 22 (Tri-Hyd.)
consultancy services in relation to work of
erection and commissioning of equipment in Dy. General Manager, Tata Motors Ltd. Vs.
MGU CCE, 2015 (40) STR 269 (Tri.-Mumbai)
Hindalco Industries Ltd. v. CCGST, Jabalpur, (Credit Rs. 4,97,609) 2019 (5) TMI 1620 - CESTAT NEW DELHI Unique Chemicals v. CCE & ST, Vadodra-II, 2019(8) TMI 200-CESTAT Ahmedabad Erection, Commissioning and installation Orient Cement Ltd. v. CCE, Hyderabad, 2017 services for installation of plant and (51) STR 459 (Tri.-Hyd.) machinery.
CCE, Kolkata v. Texmaco UGL Rail, 2019 (7) (Credit Rs. 83,56,361) TMI 1651 - CESTAT KOLKATA Hindalco Industries Ltd. (Supra) Unique Chemicals (supra) Mukund Ltd. v. Commissioner of Central Tax and Central Excise, Belgaum, 2019(3) TMI 1422-CESTAT Bangalore Manpower Supply Agencies services for Pepsico India Holdings Pvt. Ltd. (supra) deploying manpower for erection and Jaypee Rewa Plant v. CCE,2018 (9) TMI 633 - installation work of equipments etc. CESTAT NEW DELHI (Credit Rs. 2,90,793) Unique Chemicals (supra) Security Agency Services for securing Triveni Engineering & Industries Ltd. v. C.C.E. movable/immovable property at MGU & S.T., Meerut-II, 2017 (3) G.S.T.L. 140 (Tri. -
(Credit-Rs. 2,40,877) All.) Works Contract Services in the nature of Jaypee Rewa Plant v. CCE,2018 (9) TMI 633 - Erection, Commissioning and Installation CESTAT NEW DELHI Service for augmentation of existing track Orient Cement Ltd. v. CCE, Hyderabad, 2017 capacity at railway siding of MGU for inward transport of inputs and outward (51) STR 459 (Tri.-Hyd.) clearance of goods. (Credit-Rs. 20,02,604) Services for Supply of Tangible Goods for Saravana Global Energy Ltd. v. Commissioner hiring of crane and earth moving machinery of C. Ex., Puducherry, 2017 (52) S.T.R. 179 to shift machinery/equipment at MGU (Tri. - Chennai) (Credit- Rs. 4,28,453) Larsen & Toubro Ltd. v. CCE, Mumbai-II, Hiring of JCB & Heavy Earth Moving 2018(15) GSTL 66(Tri.-Mumbai) machinery service for Erection, Commissioning and Installation of railway track, plant and machinery (Credit -Rs. 3,97,003) 12 Maintenance or repair services for Orient Cement Ltd. (supra) electrification and power supply work at MGU essentially used in relation to manufacture of final product. (Credit-Rs. 24,151) Chartered Accountant Services for Manchanda and Manchanda v. Commissioner accounting, regulation compliances, Project of C. Ex., Delhi-Iv, 2019 (21) G.S.T.L. 529 (Tri. audit necessary for completion of expansion/ - Del.) modernization of MGU (Credit-Rs. 10,382) Banking & Other financial Services for Hindalco Industries Ltd. (supra) foreign exchange conversion charges paid to Sundaram Clayton Ltd. Vs. CCE, 2016 (42) DBS Bank for financing of MGU STR 741 (Tri.-Chennai) (Credit- Rs. 1,885) GTA services for inward transportation of Specified in the inclusive part of Rule 2(l)
input and capital goods like cables, electric motors, grinding rollers, packers etc. in the MGU.
(Credit -Rs.1,41,465)
16. The Learned Authorised Representative for the revenue has vehemently opposed the appeal and supported the impugned orders. There cannot be any quarrel with the principle that in Orient Cement Ltd., vs. CC, CEx.& ST, Hyd.-2017 (51) STR 459, it has been laid down that the changes brought out by the amendment in Rule 2(l) w.e.f. 01.04.2011 is prospective in nature. So far as the decision in Vikram Cement vs. CCEx., Indore -2009 (242) ELT 545, is concerned, the Bombay High Court was dealing with the issue whether welding electrodes can be called as „inputs‟ in terms of Rule 2(k) of Cenvat Credit Rules, 2004, therefore, no reliance could be placed on the said judgement. Similarly, the other case law Shriram General Insurance Co. Ltd., vs. Commissioner of C. Ex., Jaipur-I - 2021 (44) GSTL 185 (Tri. Del.), Herrenknecht India Pvt. Ltd., vs. Commissioner of GST & Central Tax, Chennai -2019 (28) GSTL 243 (Tri. Chennai), Empire Industries Ltd., vs. Commissioner of C.Ex. Mumbai-III - 2018 (15) GSTL 274 (Tri. Mumbai), India Cements Ltd., vs. Commissioner of C. Ex. & S.T. Guntur -2016 13 (45) STR 557 (Tri. Hyd.) and also in Toyota Kirloskar Motor Pvt. Ltd., vs. Commissioner of Central Tax -2021 (55) GSTL 129 (SC.), referred to by the learned Authorised Representative are clearly distinguishable in view of the issue involved therein. We do not agree with the plea of per incuriam raised by him relying on M/s Case New Holland Construction Equipment (I) Pvt. Ltd., vs. CC Ex., Ujjain 02021 (8) TMI 963, to say that in the case of Hindustan Zinc the law laid down has not been considered as the said decision is based on the earlier decisions on the subject. The case law cited by the authorised representative is not applicable in the present controversy and is clearly distinguishable. We chose to take the same view as has been repeatedly and successively taken in the line of decisions by different Benches of this Tribunal and therefore reliance placed on Parle International Ltd., vs. UoI -2021 (375) ELT 633 cannot be pressed. He also informed that the decisions of the Tribunal in the above said cases of Hindustan Zinc, Kellogs India have not been accepted by the department and appeal has been preferred against them before the respective High Courts. However, there is no order of stay by any higher forum and therefore as a matter of judicial discipline the earlier decisions of this Tribunal on the same issue are binding on this Bench.
17. We respectfully agree with the aforesaid decisions and therefore the demand made by the revenue to deny cenvat credit by the appellant and order its recovery is rejected. Consequently, the question of interest and penalty no longer survives. 14
18. In view of the entire discussion above, the impugned order is set aside. Accordingly, the appeal is allowed.
(Pronounced on 10.04.2023).
(P. V. Subba Rao) Member (Technical) (Binu Tamta) Member (Judicial) Pant