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TMI Blog2016 (11) TMI 470X X X X Extracts X X X X X X X X Extracts X X X X ..... Cenvat Credit Rules, hence will be entitled to the Cenvat Credit . It is not categorically established in the present case that all the steel items are used in creation of immovable assets only. On the contrary, the appellants submitted detailed certificate by a Chartered Engineer. We have perused the same. The said certificate records that upon physical examination, it was certified that the steel items have been used for fabrication of various equipments/accessories in various locations of the plant - The categorical assertion of facts by the appellant as supported by the Chartered Engineer Certificate should have been rebutted with evidences of such nature before making summary conclusion on the basis of the presumption. We find the original order is not legally sustainable. Denail of CCR not sustained - appeal allowed - decided in favor of appellant. - Excise Appeal No. 55228/2013-EX(DB) - Final Order No. 54613/2016 - Dated:- 28-10-2016 - Dr. Satish Chandra, President And Mr. B. Ravichandran, Member (Technical) Shri B. L. Narsimhan, Advocate for the appellant Shri Amresh Jain, DR for the respondent ORDER Per B. Ravichandran The appeal is against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from Chartered Engineer to substantiate their claim that such steel items have been used to fabricate and install capital goods only. It was submitted that the impugned order failed to appreciate the facts as narrated in the said certificate. 4. Ld. Counsel further submitted that the inputs in the form of various steel items were specifically used for the manufacture of specified capital goods falling under Chapter 82, 84 and 85 of the Central Excise Tariff. Without erection and installation and operation of these capital goods, the manufacture of cement is not possible. It was also submitted that though the steel items by themselves cannot be classified as capital goods, but by their respective usage inside the premises of the appellant, in fabrication of various capital goods and machinery have become accessories or components of such capital goods. Reliance was placed on the Hon ble Supreme Court s decision in the case of Rajasthan Spinning Weaving Mills Ltd. 2010 (255) ELT 481 (SC). 5. Ld. Counsel submitted that emphasis on immovability of the machinery fabricated using the inputs due to their embedding in the earth is not a relevant criteria to decide the credit avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while dismissing the appeal filed by the Revenue the Division Bench of this Court held as follows: 8. Even though learned standing counsel appearing for the Revenue submitted that the judgment in the assessee's own case reported in AIT-2011-358-HC = 2011-TIOL-558-HC-MAD-CX (The Commissioner of Central Excise V. M/s. India Cements Limited) had been appealed against, as of today, there are no details; in any event, the fact herein is that the Revenue does not controvert the facts found by the Assistant Commissioner that the impugned goods were used for fabrication of structurals to support various machines like crusher, kiln, hoppers, pre-heaters conveyor system etc. and that without these structurals, the machinery could not be erected and would not function. 9. In the decision reported in AIT-2011-358-HC = 2011-TIOL-558-HC-MAD-CX (The Commissioner of Central Excise V. M/s. India Cements Limited), pointing out to Rule 57Q and the interpretation placed by the Apex Court in the decision reported in 2010 (255) E.L.T.481 = 2010-TIOL-51-SC-CX (Commissioner of Central Excise Jaipur V. Rajasthan Spinning Weaving Mills Ltd.) and in particular Paragraph Nos.12 and 13, where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y considered the issue and held that the decision reported in - 2011-TIOL-73-SC-CX (Saraswati Sugar Mills V. Commissioner of Central Excise, Delhi - III) in Civil Appeal No.5295 of 2003 dated 02.08.2011 is distinguishable on facts. This Court applied the principles laid down in the decision reported in 2010 (255) E.L.T.481 = 2010-TIOL-51-SC-CX (Commissioner of Central Excise Jaipur V. Rajasthan Spinning Weaving Mills Ltd.) and held in favour of the assessee. 10. Hence, following the principles laid down in the decision reported in 2010 (255) E.L.T.481 = 2010-TIOL-51-SC-CX (Commissioner of Central Excise Jaipur V. Rajasthan Spinning Weaving Mills Ltd.) and the earlier decision of this Court in C.M.A.No.3101 of 2005 dated 13.12.2012, we are inclined to allow the appeal, thereby set aside theorder of the Tribunal. Accordingly, the above Civil Miscellaneous Appeals stand allowed. No costs. Consequently connected Miscellaneous petitions are closed. 10. Accordingly, the reliance placed by the impugned order on the decision of the Tribunal in Vandana Global Ltd. 2010 (253) ELT 440 (Tribunal-LB) for retrospective application of such exclusion is not legally tenable. 11. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court has considered an identical issue of steel plates and MS channels used in the fabrication of chimney for diesel generating set. The credit stands allowed in the light of Rule 57Q of the erstwhile Central Excise Rules, 1944. In the said judgment, the Apex Court has referred to the user test evolved by the Apex Court in the case of CCE, Coimbatore vs. Jawahar Mills Ltd. -2001 (132) ELT 3 (SC), which is required to be satisfied to find out whether or not particular goods could be said to be capital goods. When we apply the user test to the case in hand, we find that 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, spa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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