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TMI Blog2017 (6) TMI 631X X X X Extracts X X X X X X X X Extracts X X X X ..... - appeal allowed - decided in favor of appellant. - E/26537/2013-SM - 20861/2017 - Dated:- 9-6-2017 - Shri S. S. Garg, Judicial Member Mr. H.Y. Raju Adv For the Appellant Mr. N. Jagadish, A.R. For the Respondent ORDER Per: S. S. Garg The present appeal is directed against the impugned order dated 15.02.2013 passed by Commissioner (Appeals) whereby the Commissioner(Appeals) has allowed the department's appeal and set aside the order-in-original and confirmed the demand of ₹ 1,51,278/- in terms of Rule 14 of the Cenvat Credit Rules 2004 read with Proviso to Section 11A(1) of the Central Excise Act 1944 along with interest and penalty. 2. Briefly the facts of the case are that the appellants are engag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant submitted that the impugned order is not sustainable in law as the same has been passed without appreciating the provisions of the Cenvat credit and without following the binding judicial precedents on the issue. He further submitted that the disputed items MS angles, channels, joists and beams have been used for supportive structure of machinery of kiln-II in their factory for the period prior to amendment of explanation 2 to Rule 2(k) of CCR 2004. In support of his submission, he relied upon the following decisions: 1) Singhal Enterprises Pvt Ltd Vs CCE C [2016(341) ELT 372 (Tri-Del0] 2) Andhra Sugars Ltd Vs CCE C Guntur [2016(343)ELT 1051(Try-Hyd] 3) Madras Cements Ltd Vs CCE Hyderabad[2016(336)ELT 175 (T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 v. Jawahar Mills Ltd., - 2001 (132) E.L.T. 3 (S.C.), 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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