[ORDER PER: ANGAD PRASAD]

M/s Sheetal Shipping & Metal Processors Ltd., (hereinafter referred to as appellant) filed this appeal against the Order-in-Original No.16/2012-CE- HYD-III-ADJN (COMMNR) dated 28.09.2012 which denied the Cenvat Credit and confirmed an amount of Rs. 58,49,116/- for the period May 2007 to June 2009. The appellant is a manufacturer of Sponge Iron and availed credit on steel items such as MS Channels, Ms Angles, TMT Bars, HRC Plates, MS Plates and electrodes.

2. The appellant during the period from May 2007 to June 2009, availed Cenvat Credit of duty paid on certain goods such as TOR Steel, MS Rounds, MS Beams, MS Angles, electrodes etc., (hereinafter referred to as MS Structurals) under the category of ‘capital goods’. The MS structurals were used by the appellant towards the erection of various capital goods such as hopper house, crushing house, screening house, stock house, chamber house, iron ore pre-heating Klin platform & house, PH Klin to Main Klin transfer chute & house, Main Klin platform, Klin to Cooler transfer chute &house, shed for coal, central control maintenance room, etc.

3. Consequent to audit, the appellant was issued the Show Cause Notice dated 06.01.2012 invoking the extended period of limitation. The appellant submitted a detailed reply contesting the allegations in the SCN and also produced a Charted Engineer’s certificate to prove that the MS Structurals were used in the machineries erected at their plant where manufacturing activity is carried out.

4. Learned Commissioner passed the Order-in-Original holding the allegations in the SCN.

5. The appellant being aggrieved by the impugned order/O-I-O filed this appeal before the CESTAT.

6. Learned Counsel for the appellant submits that the Explanation 2 to Rule 2(k) of the Cenvat Credit Rules, 2004, was amended vide Notification No. 16/2009-CE(NT) dated 07.07.2009 and after amending, the explanation stood as follow:

“Explanation 2: Input include goods used in the manufacture of capital goods which are further used in the factory of the manufacture but shall not include cement, angles, channels, Centrally Twisted Deform bar (CTD) or Thermo Mechanically Treated Bar (TMT) and other items used for construction of factory shed, building or laying of foundation or making of structures for support of capital goods.”

7. However, after amendment, the Department took a view that the Notification is applicable with retrospective effect. The Larger Bench of CESTAT, New Delhi in the case of M/s Vandana Global Ltd., reported in [2010(253) ELT 440 (Tri-LB)], decided the issue in favour of the Revenue by holding that the amendment was clarificatory in nature and it was having retrospective application. On appeal by M/s Vandana Global Ltd., to the Hon’ble High Court of Chhattisgarh, the Larger Bench’s decision of the Tribunal was set aside and the matter was decided in favour of the assessee. The Court held that the amendment is applicable prospectively. Therefore, the findings of the Adjudicating Authority on the basis of the Larger Bench decision, supra is not sustainable.

8. Learned Counsel for the appellant submits that the issue involved is no more res-integra by virtue of the Hon’ble Madras High Court decision in the case of M/s Thiru Arooran Sugars reported in [2017 (7) TMI 524 – Madras HC]. The issue for consideration before the Court was whether structurals, cement, iron and steel would fall within the scope and ambit of Rule 2(a)(A)(iii) and Rule 2 (K) of the Cenvat Credit Rules, 2004 for the period prior to and after the amendment vide said Notification. Hon’ble High Court held that amending provisions are applicable prospectively. He also submits that the decision of M/s Thiru Arooran Sugars, supra, is squarely applicable to the present case and the Cenvat Credit availed on MS structurals is legally correct and eligible.

9. Learned Counsel for the appellant submits that the appellant was, inter-alia engaged in the manufacture of sponge