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TMI Blog2018 (7) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... ear 2010 but has issued the show cause notice even based upon Rule 14 as is impressed upon during the arguments, is not sustainable. CENVAT credit - MS bars - Held that:- The article in question i.e. MS Bars since has not been customized / fabricated in such other form to have been exclusively fastened to the cranes herein but have merely been utilized in their existing form for a pathway meant for these cranes, the MS bars in the given circumstances, to my opinion, do not even fall under the definition of either component or spare or accessories of the capital goods as mentioned in Rule 2 (a) (iii) of CCR, 2004. Appeal allowed in part. - Excise Appeal No. E/51322/2018 [SM] - A/52400/2018-SM[BR] - Dated:- 26-6-2018 - MRS. RACHNA GU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as far as both the above said demands are concerned. The Commissioner (Appeals) vide the impugned order has set aside the Order-in-Original to the extent of the credit of ₹ 30,306/- on tour operative service with consequential benefit. However, confirming the remaining demand. Aggrieved thereof is the present appeal. 4. I have heard Shri Dhrup Tiwari, ld. Advocate for the appellant and Shri K. Podar, ld. D.R. for the Department. 5. It is submitted by the appellant that before this Tribunal 2 issues are to be considered. (1) About the availment of 100% Cenvat Credit on the capital goods. (2) About the Cenvat Credit of duty paid on M.S. Bars. 5.1. With respect to the former issue, it is submitted that the appellant has st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Appeal is accordingly, prayed to be allowed. 6. While rebutting these arguments ld. DR has impressed upon para 3 of the impugned show cause notice pointing out that it is appellant s own admission for wrongly availing the 100% Cenvat Credit on capital goods. Not only this, it is also very much apparent that the said credit to the extent of 50% was reversed even prior the issuance of show cause notice. Hence, the arguments of the appellants at this stage of the second appeal are not at all sustainable. Also these issues were not raised before the Commissioner (Appeals). The demand of Cenvat credit as availed by appellant has rightly been confirmed by the Adjudicating Authority below and the reversal has rightly been directed to be appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el for the appellant as per Rule 4 (2) of Cenvat Credit Rules the availment is nowhere restricted rather it is the utilization thereof. Apparent and admitted fact is that the utilization in the present case is for the months of January to March, 2011 (three months only) and the remaining availed cenvat credit is lying as unutilized credit. The same has nowhere been disputed by the Department also, rather it is very much apparent from para 3 of the show cause notice. In the given circumstances, I am of the opinion that since the Revenue has not denied that 50% of the availed Cenvat Credit has been reversed even prior to the show cause notice and that the entire amount has not been utilised except for last three months of year 2010 but has is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have perused the said judgement and after keeping in mind the arguments of both the parties, I am of the opinion that in the said judgement the Articles used were the Crane Girder, Crane Rail, Crane Column, Crane Surge Girder and Crane Auxiliary Girder. In the present case, the article in question i.e. MS Bars since has not been customized / fabricated in such other form to have been exclusively fastened to the cranes herein but have merely been utilized in their existing form for a pathway meant for these cranes, the MS bars in the given circumstances, to my opinion, do not even fall under the definition of either component or spare or accessories of the capital goods as mentioned in Rule 2 (a) (iii) of CCR, 2004. 10. The another case l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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