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TMI Blog2016 (10) TMI 615X X X X Extracts X X X X X X X X Extracts X X X X ..... ctangular bar, PCC Chequred plate, chain conveyor etc. falling under Chapter 72 and 73 of the Central Excise Tariff Act, 1985. The appellants are engaged in the manufacture of Cement liable to Central Excise duty. They availed cenvat credit on inputs and capital goods. By entertaining a view that the appellant had wrongly availed credit on various steel items stated above, proceedings were initiated against them which resulted in the impugned order. The original authority disallowed the total cenvat credit of Rs. 2,70,89,749/- and imposed equal amount of penalty. 2. We have heard both the sides and perused the appeal records including written submissions and case laws relied upon by both the sides. The disputed items on which credit has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relation to fabrication of various structures including support structures and overall plant and machinery which is embedded to earth hence, these steel items cannot be considered to have been used in the manufacture of any marketable capital goods. We find that the concept of marketability and excisability of capital goods is introduced by the original authority in considering the eligibility of item for cenvat credit either as an input or as a capital goods. We find no such stipulation in the Cenvat Credit Rules regarding excisability of plant and machinery to be established before credit can be allowed on the input used in the manufacture of capital goods by the manufacturer. Various case laws and Board Circulars have been quoted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chhattisgarh agreed with the findings of this Tribunal holding that wearplate, MS Plate, angels, channels etc. used for connecting/ fitting fans, casing, ducting in kilns for the manufacture of clinker are eligible for cenvat credit. The Hon'ble Karnataka High Court in CCE vs. Mysore ICL Sugars Ltd. 2011 (271) ELT 360 (Kar.) has held that cenvat credit on the raw materials used in manufacture of tank which is an immovable property, cannot be denied. In CCE vs. JSW Ispat Steel Ltd. 2015 (327) ELT 549 (Tri.) this Hon'ble Tribunal has allowed the cenvat credit on the goods used in setting up of oxygen plant. (ii) The Commissioner has also denied cenvat credit on the steel structures used for bag filter which is pollution control ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omic Zone Ltd 2015 (39( STR 726 (Guj.) 6. We find that apart from the various other case laws relied upon by the appellant as above, the decisions of Hon'ble Madras High Court in India Cements Limited 2012 (285) ELT 341 (Mad.), 2014 (310) ELT 636 (Mad.) and 2014 (305) ELT 558 (Mad.) all on the same set of facts, though with reference to erstwhile Rule 57Q are also relevant. The Hon'ble Supreme Court in Jayaswal Neco Limited 2015 (319) ELT 247 (SC) allowed cenvat credit on railway track materials used for handling raw material processed goods. The Tribunal in Bellary Steel and Alloys Limited vs. CCE, Belgaum 2005 (180) ELT 92 (Tri. Bang.) held that cenvat credit is available on HR sheet, angles, channels etc. u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit is admissible on various structural steel items, such as, MS Angles, Sections, Channels, TMT Bar etc., which have been used by the appellants in the fabrication of support structures on which various capital goods are placed? The same stands denied by the lower authority. The learned DR has sought disallowance of the same by citing the decision of the Larger Bench in the case of Vandana Global Ltd. (supra) and other judgments. Further, he has brought to our notice and emphasised the amendment carried out in Explanation-II to Rule 2(a) which defines the term input w.e.f. 07.07.2009. It has further been pleaded that the cenvat credit claimed for the period prior to this will be covered within the decision of the Larger Bench in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the structural steel items have been used for the fabrication of support structures for capital goods. The appellants have argued that the various capital goods, such as, kiln, material handling conveyor system, furnace etc. cannot be suspended in mid air. They will need to be suitably supported to facilitate smooth functioning of such machines. It is obvious that the structural items have been suitably worked upon for this purpose. Accordingly, the goods fabricated, using such structurals, will have to be considered as parts of the relevant machines. The definition of Capital Goods includes, components, spares and accessories of such capital goods. Accordingly, applying the User Test to the facts in hand, we have no hesitation in holdin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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