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TMI Blog2016 (8) TMI 534X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal No. 55730/14 - Final Order No. 70354/2016 - Dated:- 7-1-2016 - Mr. Anil Choudhary, Member (Judicial) Ms. Rinki Arora, Adv. for the Appellant (s) Shri Chatru Singh, Asstt. Commr. (A.R.) for the Respondent ORDER The appellant is a manufacturer of Kraft paper and is in appeal against order in appeal dated 25/4/14 passed by the Commissioner (Appeals) Central Excise, Meerut I. 2.1 The issue involved in this appeal is whether the appellant, who had taken Cenvat credit of ₹ 23,06,106/- during the period April, 2007 to May, 2012 on items, like, M.S. angles, plates, sheets, shapes, sections and chanels et cetera, which was objected to by the Revenue pursuant to Audit during June and July, 2012 and the appellant on insisting by Revenue, debited Cenvat credit to the tune of ₹ 5,70,549/- received during the Financial Year 2007-08, involving 50% of the due credit vide Entry No. 02 dated 1/4/13, under protest, which was informed to the Range Office and for the balance amount of ₹ 17,93,114/- did not accept Revenue's proposal. 2.2 Show cause notice had been issued, whereas the appellant filed a refund claim on 23/4/13 with the Deputy Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of plant and machinery during 2007 to 2009, visited the factory on 25/10/12 and mentioned that the inspection report is final report prepared on basis of visible inspection as well as according to information produced before him by the Management of the appellant. Further, it was observed that the Chartered engineer certifying had visited the factory premises of the appellant after almost two years of manufacture of plant and machinery and thus, has not witnessed the fabrication of the said claimed of capital goods out of the impugned items. Accordingly, the said Certificate is doubted and held not reliable. Further, the material issue slips et cetera were held to be the private records of the appellant. 4. Being aggrieved, the appellant have carried the matter before this Tribunal on the ground that the order of Commissioner (Appeals) is cryptic as no finding have been given on the evidence available on record. That the Commissioner (Appeals) rejected the appeal on presumptions and assumption, which is fit to be set aside, The Id. Counsel further relies on the order in appeal dated 10/8/15 passed by the Commissioner (Appeals), Central Excise, Meerut I, being order in appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted the contention of the appellant in above para but has held that the monthly return filed by the appellant do not show either the production of the claimed capital goods or its clearance for captive consumption under excise invoices, As regards the chartered engineer's certificate the adjudicating authority has doubted on its practical feasibility as the chartered engineer visit was made on 25.10.2012 but the material in question was used in fabrication and manufacturing of machines in 2007. The Adjudication authority has also observed that though storage tanks are defined as capital goods but the appellant failed to prove whether the same are storage tank or for any other purpose. I have perused the certificate issued by the chartered engineer and it clearly mentions the quantity of items used in the fabrication of capital goods and the usage of the iron and steel items in question can easily be identified from it. Further I find no reason to doubt or disbelieve the subject certificate as far as the fabrication of capital goods and their use is concerned. I find that the appellant failed to show the production and clearance of claimed capital goods, in monthly r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... milar usage of the good in the factory of the assessee held that Cenvat/Modvat - Input used in the manufacture of capital goods which in turn used in the manufacture of final product - Credit not deniable Input viz. tor steel, cement, bars and angles used in the manufacture of furnace which is used for the manufacture of final products viz. picture tubes Eligible for credit - Rule 57A of erstwhile Central Excise Rules, 1944 - Rule 3 of Cenvat Credit Rules, 2004 . Besides, reliance is placed on the Hon'ble CESTAT's decision/final Order No. 101/2008-sm (BR) dated 05122007, in the case of Dharnpur Sugar Mills Ltd Vs CCE, Meerut-ll, wherein the CESTAT relying on the Hon'ble CES TAT's Judgement in the case of CCE, Indore Vs, Hotline Glass Ltd., 2007(210)ELT 69 (Tri -Del.), observed/ held that the items namely Steel Shape, Sections, M.S. Angle Joint are used in equipment namely Fermentor, which in turn is used for manufacture of final product therefore, Cenvat credit on the items in question cannot be denied. Further, in the above context, the Hon'ble High Court's judgement in the case of CCE, Ludhiana Vsn Hero Cycles Ltd., 2007 (207) ELT 663 (P H) [as ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l as taken notice of in para-4.1.6 in the order-in-original denying them. The appellant had given specific items fabricated along with the denial of the inputs used and the scrap generated. Material transfer note number, the dates, which are not disputed. The Id. Counsel further urges that under the Explanation 2 in Rule 2 (k) (Il) input means and input includes goods used in the manufacture of capital goods which are further used in the factory of the Manufacturer. The Ida Counsel also relied upon the ruling of Honourable Gujarat High Court in the case Mundra Ports Special Economic Zone Ltd. vs. CCEx. Customs : 2015 (39) STR 726 (Guj.) wherein for the items like, cement and steel used in construction of new jetty and other commercial buildings was held entitled to Cenvat credit in spite of the fact that construction of jetty was exempted. It was further held that amendment to Rule 2 (k) Explanation 2 of CCR with effect from 7/7/2009 was not clarificatory in nature. Relevant legislation if wants to clarify the provision, it clearly mentions intention in the notification itself and seeks to clarify the existing provision. 5. The Ide A.R. for Revenue relies on the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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