9911796707
TMI Blog2015 (4) TMI 1021X X X X Extracts X X X X X X X X Extracts X X X X ..... in question, - MS angles, channels, bars etc. are not covered by the definition of capital goods and the same would be eligible for cenvat credit only if there is evidence on record to prove that the same had been used for fabrication of capital goods and only in that case such steel items would be eligible for cenvat credit as inputs. But for this there must be some clear evidence on record which, prima facie, is not there in this case. - this is not a case for total waiver from the requirement of pre-deposit. After considering the overall facts and circumstances of the case and also the plea of financial hardship pleaded by the appellant, we direct the appellant to deposit an amount of 40 lakh within a period of 8 weeks. On deposit of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed penalty of ₹ 1,89,37,898/- on the appellant under Rule 15 of the Cenvat Credit Rules, 2004. Against this order of the Commissioner, this appeal has been filed along with stay application. 2. Heard both the sides. 3. Sh. KK Anand, the Ld. Advocate the Ld. counsel for the appellant, pleaded that the steel items, in question, had been used for fabrication of various items of capital goods, for use within the factory, that the items of capital goods fabricated are air pollution control equipment, Air and water cooling/circulation/Distributor plant, material handling/ transferring and feeding equipment, kilns, chimneys etc, all of which are covered under chapter 84 of the tariff, and hence the items fabricated are covered by the def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not been enclosed, that in any case, the chartered engineer is a civil engineer who was not competent to certify the user of the goods, that in any case, the certificate has been produced after 2 years, and hence the same lacks credibility, that the fabrication of capital goods was not declared in the ER-1 returns and no specific intimation was given to the Department in this regard and hence, the appellant have not been able to produce any evidence in support of their claim regarding use of the goods, that the MS Angles, Channels Bars etc, are not covered by the definition of capital goods, that they would be eligible for cenvat credit as input only if there is evidence on record to prove that the same has been used for fabrication of capi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he rival submissions on this point we are of the view that the point of dispute in this case is a point of fact which has to be examined after examining the evidence from both the sides which is possible only at the stage of final hearing. 7. Prima facie we find that there is no evidence that the fabrication of the capital goods had been declared by them in the ER-1 returns or by any other specific information in this regard given by the appellant. The steel items, in question, - MS angles, channels, bars etc. are not covered by the definition of capital goods and the same would be eligible for cenvat credit only if there is evidence on record to prove that the same had been used for fabrication of capital goods and only in that case such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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