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TMI Blog2018 (12) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... pital goods in the factory. Show Cause Notice dated 09.07.2008 was issued alleging illegal availement of cenvat credit. It is the case of the department that the impugned goods are not defined under Rule 2(b) of the Cenvat Credit Rules, 2004. The period of dispute is from 2003-2004 to 2007-2008 (upto February, 2008). The Adjudicating Authority confirmed the demand alongwith interest and imposed equal penalty under Rule 13(2)/Rule 15(2) of the Cenvat Credit Rules, 2002/2004. Hence, the present appeal before this Tribunal. 2. Ld. Representative (GM Taxation) appearing on behalf of the appellant company submits that they have availed cenvat credit on various steel items used in fabrication of capital goods and their accessories inside the factory premises. All the input items were purchased and used in fabrication of capital goods and their accessories and the supporting structures and the details of the said inputs were entered in the statutory Books of Accounts and intimated to the department under monthly ER-1 Returns on regular basis. It is the submission of the Ld. Representative that all necessary formalities and procedures were duly complied with and the goods have been exclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Hon'ble Madras High Court in Thiru Arooran Sugars [2015-TIOL-1734-HC MAD-CX] held as under: "8. Learned Standing Counsel appearing for the Revenue heavily relied upon 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. However, we find that this Court has earlier considered the issue in C.M.A.No.1301 of 2005 dated 31.12.2012, wherein, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on reported in 2010 (255) E.L.T.481 = 2010-TIOL-51-SC-CX (Commissioner of Central Excise Jaipur V. Rajasthan Spinning & Weaving Mills Ltd.), the Revenue's appeal was also rejected. In the circumstances, this Civil Miscellaneous Appeal is dismissed. No costs. Consequently, C.M.P. No.16107 of 2005 is also dismissed." 9. From a perusal of the above said judgment, it is seen that there is no change in the circumstance and this Court had already 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts & Special Economic Zone Ltd. 2015 (04) LCX0197, wherein it was observed that the amendment made on 07.07.2009 cannot be held to be clarificatory and as such would be applicable only prospectively. 15. We find that the controversy can be laid to rest by making a reference to the decision of the Apex Court in the case of CCE, Jaipur vs. Rajasthan Spinning & Weaving Mills Ltd. -2010 (255) ELT 481(SC), wherein the Hon'ble 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture of use has also been provided. We have noted that the impugned order summarily concluded that the usage as mentioned in the chart submitted by the appellant clearly suggest that these items, which fabricated are only civil structures unique to civil plant. We are not able to accept such summary conclusion by the Original Authority. A perusal of the usage of the detailed summary as well as supporting photographs submitted by the appellant will show that the various steel items have been used in different manner in capital machinery or associated structure and can rightly be considered as accessories closely inter-connected to the capital goods for their function. 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. 10. As examined earlier, the various High Courts and Hon'ble Supreme Court have been taking consistent view regarding these steel structures and their eligibility to cenvat credit, which is also being followed by the Tribunal in various decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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