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TMI Blog2014 (2) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... d would be eligible for Cenvat Credit. It is also seen that para 2 of the Show Cause Notice itself states that on scrutiny of the said returns filed by the appellant, it was revealed that they have taken Cenvat Credit on the structural steel items like Angle, Channel, Beam used by them in manufacturer of parts of capital goods and that Cenvat Credit was availed appears to be inadmissible. Since in this case the availment of Cenvat Credit in respect of Steel items, in question, and their use has been declared for ER-1 Return, it was the responsibility of Jurisdictional Assistant Officer to immediate verify their claim and as such it cannot be said that the appellant did not disclose the availment of Cenvat Credit in respect of the inputs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not be eligible availing credit on steel items as the same appear to have been used in erection of permanent supporting structure used mainly for making the machinery of vibration fee. Accordingly the Show Cause Notice dt. 13.05.10 was issued for recovery of this credit along with interest and imposition of penalty on the appellant. The Show Cause Notice was adjudicated by the Additional Commissioner vide order-in-original dt. 21.11.11 by which the above mentioned Cenvat Credit demand was confirmed along with interest and penalty of equal amount was imposed. The demand was confirmed by invoking longer limitation period under Proviso to Section 11A(1) by holding that the appellant have suppressed the relevant fact from the Department. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Jt.CDR, opposed the Stay Application by reiterating the findings of the Commissioner (Appeals) and drawing attention to para 5.2 of the order-in-appeal, he pleaded that the appellant in course of proceedings before the Additional Commissioner did not produce any fact in support of their claim regarding use of the steel items for fabrication of capital goods or parts thereof, that no Certificate of the Chartered Engineer was submitted giving the drawings and designs of the capital goods, name and description of the capital goods manufactured and the quantity of the raw material used etc., that in view of this, just on the basis of mere mention in ER-1 Return regarding use of the steel item for fabrication for capital goods, their claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn filed by the notice, appeared to reveal that the Notice ehad availed Cenvat Credit on the Structural items like Angle, Channel, Beam etc. mostly falling under Chapter 72 of the Central Excise Tariff Act, 1985, and used by them in the manufacture of parts of capital goods in the factory of production, as detailed in Annexure- A enclosed to this notice. Besides they had also availed Cenvat Credit on other goods viz. Oxygen Gas. The Cenvat Credit so availed by the notice appears to be inadmissible in the light of the provisions of Cenvat Credit Rules., 2004 in as much as:- (a) The said structural items appeared to have been used by them for erection or construction of permanent supporting structure (mainly for making capital goods vibrati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . As all the items covered in Annexure-A have not been used in or in relation to the final products as explained in para 2(a) of this notice, said items do not appear to be covered by the above definition and hence cannot be considered as input. (c ) The item covered in Annexure-A on which the notice have taken Cenvat Credit also not to be considered as capital goods as the said items do not appear to have been covered within the ambit of definition of capital goods as defined under Rule 2(a) of Cenvat Credit Rules 2004 which is reproduced as under:- (i) All goods falling under Chapter 82, Chapter 84, Chapter 85, Chapter 90, heading no 6805, grinding wheels and like, and parts thereof falling under heading 6804 of the first schedule t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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