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TMI Blog2010 (9) TMI 614X X X X Extracts X X X X X X X X Extracts X X X X ..... avail cenvat credit in relation to the duty paid on such items - Mere raising of plea in answer to the show cause notice does not by itself mean the proof of correctness of such plea - When the plea relates to certain factual aspect, it is absolutely necessary for the person raising such plea to make the same good by producing sufficient evidence in support of such plea - The appellants did produce the photograph of various items in that regard - Mere production of photographs do not amount to proof in support of such plea - Decided against of assessee. Penalty - Appellants however justified in contending that in view of divergent views expressed by different Benches of the Tribunal there was no justification for imposition of penalty - C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pital goods in terms of Rule 3 of Cenvat Credit Rules 2004. During the period from December 2005 to March 2006, the appellants availed cenvat credit to the tune of Rs. 2,74,939/- on the goods namely plates/hot strip plates, channel and angle/plate, shape section/joist, M.S. bar and H.R. coil classifiable under sub-heading No. 7208.51, 7208.52, 7216.31, 7216.21, 7216.10, 7216.50, 7214.99 and 7208.37 respectively of the schedule to the said Tariff Act on the ground that the goods were capital goods. A show cause notice dated 3-10-2006 came to be issued to the appellants on the ground that the said items did not fall in the category of capital goods as defined under Rule 2(a) of the said Rules. The proceedings sought to be initiated against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter and ascertain as to the quantity of the items utilized for making of the equipments on which the cenvat credit would be available to the appellants and to grant the same. Having failed to do so, the impugned order should be set aside. 5. The DR on the other hand, placing reliance in the decision of the Larger Bench of the Tribunal in the matter of Vandana Global Ltd. v. CCE, Raipur reported in 2010 (253) E.L.T. 440 (Tri.-LB) and drawing attention to the finding in the impugned order that the impugned goods were used for making shed on the factory besides at various stages the supporting structures were also fabricated submitted that there is no challenge to the said finding and therefore the case is covered by the decision of the L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in support of such plea. Undisputedly, the appellants did not produce any such evidence in support of such plea. 7. Learned Advocate submitted that the appellants did produce the photograph of various items in that regard. Mere production of photographs do not amount to proof in support of such plea. Firstly, the photographs are secondary proof. Secondly, photographs are always required to be proved by examining the person who had clicked the photographs. The law in that regard is well settled. 8. As far as the decision of the Apex Court in Rajasthan Spinning Weaving Mills case is concerned, the same relates to the period prior to 2002 and was in terms of the provisions of law comprised under Rule 57Q of the Central Excise Rules, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, flats which go into fabrication of such structures and plant, after taking into consideration various decisions of the Apex Court as well as High Court and Tribunal, has observed that the Cenvat Credit Rules allow credit of duty paid on capital goods used in the factory of manufacturer for the final product and the inputs used in or in relation to manufacture of the final product. It has further observed that factory shed, building, foundation and structures have not been specifically listed under the definition of capital goods. It was also held that the foundation and supporting structures are neither machine items, nor components, spares and accessories of machineries, nor listed for special inclusion in the definition. The foundatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar as merits of the case is concerned, the same do not warrant any interference in the impugned order in that regard. Learned Advocate for the appellants however justified in contending that in view of divergent views expressed by different Benches of the Tribunal there was no justification for imposition of penalty. Certainly, therefore, the intention to evade the payment of the revenue cannot be drawn from the materials on record in the facts and circumstances of the case. Hence, as far as penalty is concerned, the order in that regard is liable to be set aside. As far as penalty is concerned and the impugned order to that extent is hereby quashed and set aside. No further interference is called for. 11. Taking into consideration the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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