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TMI Blog2014 (3) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... f manufacture and fabrication of capital goods or their parts in ER-I returns. As regards the issue of limitation, the same is a mixed question of facts and law and hence final view in respect of the same can be taken only at the stage of final hearing. In view of this, this is not the case for total waiver - Conditional stay granted. - Excise Appeal No.E/60295/2013-EX(SM) - Stay Order No.60279/2013 - Dated:- 24-12-2013 - Rakesh Kumar, J. For the Appellant : Shri Sparsh Bhargava, Adv. For the Respondent : Shri Amrish Jain, AR PER : Rakehs Kumar The appellant are manufacturers of cocoa powder and cocoa butter. During the period from 2006-2007 to 2009-2010, they took cenvat credit of Rs.40,14,364/- in respect of ASTM, shape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner (Appeals) is still with the Department, that the items, in question, have been used for fabrication of the various items of machinery and hence, are eligible for cenvat credit, that even if, the department's allegation that the items, in question, have been used for fabrication and erection of supporting for machinery is accepted, no pre-deposit should be ordered in view of the judgement of the Hon'ble Bombay High Court in the case of Ambuja Cement Ltd. Vs. CCE reported in 2013 (292) ELT 20 (Bombay), and that Bangalore Bench of the Tribunal in the case of CCE, Visakhapatnam-II Vs. A.P.P. Mills Ltd. reported in 2013 (291) ELT 585 (Tribunal-Bangalore) has held that M.S. Angles, plates and rounds used for erection and fabrication of str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the longer limitation period has been correctly invoked. He, accordingly, pleaded that the amount already deposited is not sufficient to safeguard the interests of the Revenue. 5. I have considered the submissions from both the sides and perused the records. 6. Prima facie, I am of the view that in this case, cenvat credit would be admissible in respect of the steel items in question only as input, as the same are not covered by the definition of capital goods and for treating these items as inputs, there must be evidence on record to prove that the same have been used for fabrication of capital goods for which, prima facie, there is no evidence in form of any Chartered engineer's certificate and disclosure of manufacture and fabrica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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