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TMI Blog2017 (6) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... al dismissed - decided against Revenue. - E/122/12 - FO/A/75959/2017 - Dated:- 31-5-2017 - Shri P. K. Choudhary, Member ( Judicial ) Shri A.K.Biswas, Supdt.(AR) for the Revenue Shri Arnab Chakraborty Shri Hasmukh Kundalia, Advocates for the Respondent ORDER Per: Shri P. K. Choudhary Briefly stated the facts of the case are that the respondent is engaged in the manufacture of sponge iron and M.S. Billets. They are availing Cenvat Credit on inputs and capital goods under the Cenvat Credit Rules, 2004. A Show Cause Notice dated 14.03.2011 was issued proposing demand of Cenvat Credit along with interest and to impose penalty on the ground that they have availed credit on various Iron Steel items like M.S. Angle, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S). The jurisdictional Superintendent on verification has found all these four machineries to be movable machineries which have been affixed for usage through screws or the like. He has categorically stated that these machines can be moved from one place to another without dismantling or breaking up; that these are not embedded in the earth so as to be called immovable properties. In view of this factual problem, these four machineries have to be held as goods falling under chapter 84 and are accordingly, capital goods as defined in rule 2(a). The appellant have used TMT bars, angles, joist, coils, channels, plates, sheets, etc, in the manufacture of these four machineries. Therefore, in terms of Explanation 2 to rule 2(k) of the Cenvat Cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) E.L.T. 64 (Cal.)] (g) Megafine Pharma Pvt.Ld. v. CCE ST, Daman [2014-TIOL-1312-CESTAT-AHM] 7. I find that Notification No.16/2009-CE(NT) dated 07.07.2009, amended Rule 2(k) of Cenvat Credit Rules, 2004, in so far as Cenvat Credit shall not be allowed on Cement, Angles, Channels, CTD Bars etc., used for construction for factory shed, building, or laying of foundation or making structures for support of capital goods. The period of dispute in the present appeal is before the introduction of the said Notification. In any event, the verification report of the Superintendent of Central Excise states that the items in question were used in the plant machinery as reactor systems, Re-actor cooling system etc.. It is categorically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the expression that intention behind amendment was to clarify. The coverage under the input from where this intention has been gathered by the Tribunal has not been mentioned in the judgment. There is no material to support that there was any legislative intent to clarify any existing provision. For the same reason, as mentioned above, the decision of the Apex Court in Sangam Spinners Limited v. Union of India and Others, reported in (2011) 11 SCC 408 = 2011 (266) E.L.T. 145 (S.C.) would not be applicable to the facts of the instant case. 9. The Hon ble Supreme Court in the case of Sirpur Paper Mill Ltd. v. Collector of Central Excise, Hyderabad [1998 (97) ELT 3 (SC)] observed that whatever is embedded in earth must be treated as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty. 6. A further argument was made that the entire machinery as it is cannot be bought and sold because the machinery will have to be dismantled before being sold. The Tribunal has pointed out that the appellant had himself bought several items and completed the machinery. It had purchased a large number of components and fabricated a few and manufactured the paper making machine at site. If it is sold it has to be dismantled and reassembled at another site. We do not find any fault with the reasoning of the Tribunal on this aspect of the matter. 10. After considering the case laws and the verification report of the Superintendent of Central Excise, it is found that these items were used for functioning of the machines. The T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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