2. The appellants are engaged in manufacturing of Cotton Flax Yarn, Viscos Staple Fibre Yarn, Polyster Fibre yarn and Polyster Viscos Blender Yarn falling under Chapter 52 and 55. The appellants had taken Cenvat credit of Rs.20,800/- on the goods 'Plastic Crates', falling under Chapter 3923.90 during the months of September 2001 to May 2002. Stating that the goods are neither specified under Rule 2 of Cenvat Rules 2001/2002 as "capital goods" nor can the same be considered as "spares and accessories of the machineries" used in the spinning of yarn in the factory, a show cause notice dated 27.09.2002 was issued to the appellant as to why (i) the credit of Rs.20,800/- should not be recovered under Rule 12 of the erstwhile Cenvat Credit Rules 2001 and Rule 12 of the Cenvat Credit Rules 2002 read with Section 11A(1) and 38A of Central Excise Act, 1944; (ii) interest as applicable should not be demanded under Rule 12 of the erstwhile Cenvat Credit Rules 2001 and Rule 12 of the Cenvat Credit Rules, 2002 and Sections 11AB(1) and 38A of the Central Excise Act, 1944 and (iii) penalty should not be imposed under rule 13(1) of the erstwhile Cenvat Credit Rules, 2001 and Rule 13(1) of the Cenvat Credit Rules, 2002 read with Section 38A of the Central Excise Act, 1944.
c) Whether it is justified for the Tribunal to reject a plea raised at the appellate stage on the count that the same was not raised before the lower authorities when the law on this aspect by the following rulings have laid the law that a benefit of a plea even if not specifically claimed by the assessee should not be denied if they are otherwise entitled to it and the right of the assessee is not restricted to the plea raised by them?"
7. Learned counsel for appellant submitted that the question whether credit is admissible on 'Plastic Crates' used as material handling device was considered by the Larger Bench of the Tribunal of Ahmedabad in 2009. The learned counsel submitted that the Larger Bench of the Tribunal in the said case of BANGO PRODUCTS (INDIA) LTD. VS. COMMISSIONER OF C. EX., VADODARA-1 (2009 (235) E.L.T. 636 (Tri.- LB.) held that the 'Plastic Crates' used as material handling device within factory for internal transportation of goods was held to be accessory is the aid in increasing the effectiveness of the machinery and that Cenvat/Modvat credit on "Plastic Crates" are admissible as a capital goods. The Larger Bench of the Tribunal after referring to number of decisions held as under: