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TMI Blog2017 (6) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... . In fact, the Tribunal held that even goods such as angles, channels, sections etc. which are classifiable under Chapter 73 and are used for fabrication in the factory for manufacture of support structures which ultimately become part of the boiler would also be eligible for cenvat credit. The Circular dated 18.05.2012 reiterates the Circular dated 02.04.2012 and further clarifies that whether certain structural components were to be treated as boiler parts or as goods for making structures to support the boilers is a question of fact, which requires examination, on a case to case basis. The clarification is to the effect that structural components used for laying foundation or for support of capital goods is not available. We find that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. These items also suffered duty under the same tariff heading. The dispute is with reference to this second set of items fabricated / made at site. The credit on such duty paid items availed by M/s. Monnet was denied by the original authority. The original authority held that the contract is essential by for erection, commissioning on a turnkey basis and the various items fabricated by M/s. Thyssenkrupp Industries India Pvt. Ltd. at site of M/s.Monnet are nothing but supporting structures of boilers which are excluded in terms of definition under Rule 2 (a) of Cenvat Credit Rules, 2004. The original authority held that the steel structural items fabricated by M/s. Thyssenkrupp Industries India Pvt. Ltd. at site cannot be called as part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the ld. Counsels that the various steel items which are fabricated at site are specifically intended to be used in the boiler, which is to be installed in the client s premises. The original authority failed to appreciate the physical nature of the capital goods (boiler) and the technical requirements for the erection of the said boiler to make it functional in the manufacture of final product by M/s.Monnet Ispat. The claim of the original authority that M/s. Thyssenkrupp Industries India Pvt. Ltd. misclassified the product, fabricated at site, under CETH 8402 is not correct. The appellants relied on various decisions to support the correctness of the classification, as well as the entitlement for cenvat credit on such items. These dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... First of all, we note that the original authority denied cenvat credit on all items fabricated by M/s. Thyssenkrupp Industries India Pvt. Ltd.at site holding that they are not eligible for credit. Even if it is considered that there were certain support structures, these items were not identified. All items fabricated by M/s. Thyssenkrupp Industries India Pvt. Ltd. are held to be supporting structures. We find that there is no basis for such summary conclusion. Further, we note that M/s.Monnet Ispat Ltd., the main appellant in the present case, have entered into similar contracts with various suppliers of boilers and other machinery. Identical dispute arose in such cases also with reference to eligibility of the appellant for cenvat credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of boilers under chapter sub-heading 8402.90 of the Central Excise Tariff Act, 1985. 5. The Commissioner vide his order dated 31.07.1988 confirmed the demand in the show cause notice and the order has been upheld by the CESTAT as well, which is under appeal before this Court. 6. It is not necessary to go into the merits of the controversy in view of the clarification issued by the Department itself vide its order dated 2nd April, 2012. It is inter alia stated as under: Accordingly it is clarified that those structural components which are to be used essentially as part of Boiler System would be classifiable as parts of Boiler only under Heading 8402 of the Tariff. It is further clarified that since these str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of Sweta Engineering Ltd. - 2016 (235) E.L.T. 193 (S.C.) examined the classification of fabricated steel structures for mounting the boilers and their accessories. It was concluded by the Hon ble Supreme Court that structural components, which are to be used as parts of the boiler system would be classifiable as parts of boiler only, under the heading 8402 of the Tariff. Here, we note that the ld. A.R. stated that the Hon ble Supreme Court referred to Circular dated 02.04.2012 of the Board. The said Circular was further clarified by another Circular dated 18.05.2012. This second Circular was not the matter of discussion in the decision of the Hon ble Supreme Court. We have examined this submission of the ld. A.R. and perused of both ..... X X X X Extracts X X X X X X X X Extracts X X X X
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