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TMI Blog2016 (1) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... have availed cenvat credit on various items received as per Cenvat Credit Rules, 2004. The Revenue, after examining the credit details availed by the appellants, initiated proceedings against them for denying the credit on various iron and steel items used in the fabrication of various capital goods like kilns, electrification and power plants, conveyor system etc. The notice cum demand was adjudicated resulting in the impugned order dated 23.1.2009. Learned Commissioner held that iron and steel items like angles, beams, channels, plates, pipes etc. used for fabrication / installation of various capital goods are not eligible for credit as various items fabricated out of these inputs are fixed to earth, they do not satisfy the requirement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Supreme Court decision the case of Rajasthan Spinning and Weaving Mills Ltd. reported in [2010 (255) ELT 481 (SC) and Jawahar Mills Ltd. case reported in [2001 (132) ELT 3 (SC)]. He further submits that appellant themselves submitted a detailed chart giving the usage of these items in central stores, coal shed, DRI godown etc. item wise. The details were certified by Chartered engineer vide certificate dated 26.9.2007. In the said certificate 16 different type of capital goods / structurals were listed on which, the learned Counsel submitted, they have availed credit only in respect of those steel items used in Klin, raw material processing plant and power plant. In respect of steel items used in DRI godown, D G room, canteen b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f heading 84.28), raw material processing plant (84.79) power plant (85.02) and various pollution control equipment which are specifically covered under the category of capital goods. 7. These steel items used in this manner by the appellant has not been factually disputed. However, the point of dispute is that the resultant fabricated items became part of structures which are embedded to earth and become immovable, thereby losing the name of goods. Hence, Revenue contends that these items used are outside the purview of capital goods or inputs. We find that the Hon'ble Supreme Court evolved user test to answer the question whether the items falls within the purview of capital goods and held that in the case of Rajasthan Spinning Mills (su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnels, Centrally Twister Deform bar (C.T.D.) or Thermo Mechanically Treated bar (T.M.T.) and other items are used in the construction of factory shed, building or laying of foundation, the duty paid on such items the assessee would not be entitled to cenvat credit. Similarly, though the assessee is entitled to cenvat credit of cement and steel used in the manufacture of capital goods viz., storage tank, if any structure for support of capital goods is constructed and steel and cement is used for such support, the assessee is not entitled to the benefit of cenvat credit on the duty paid on such cement and steel. Therefore, there is no ambiguity in any of these provisions. When once a storage tank and pollution control equipment constitutes c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of conveyor system on the ground that these items are merely structures giving support to conveyor system. We find that conveyor system as a whole is rightly categorized as capital goods and unless it is established that certain structures are not part of the conveyor system, mere allegation that certain steel items are only supports will not be sufficient to deny the credit. Similarly, the allegation that silo is merely an item which was for receiving finished product and is not used for processing the goods is misleading and contrary to facts. Silo is a storage facility of the finished good and it is a fact that silo is a storage tank included as a "capital goods" in the overall scheme of manufacture of final product. 10. The items i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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