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TMI Blog2019 (5) TMI 867X X X X Extracts X X X X X X X X Extracts X X X X ..... G MILLS LTD. [ 2010 (7) TMI 12 - SUPREME COURT] , 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 addition, the Department s own Circular No. 964/07-2012 dated 2nd April 2012 supports the appellant s case and also the Circular No. 966/2009 dated 18 May, 2012 come to the rescue of the appellant which contained clarification regarding classification of structural components and admissibility of Cenvat credit Cenvat Credit there upon. It was clarified in the said Circular that Cenvat Credit is available in support of such structural components, which though are used for laying foundation or for making structural support, but if the machine cannot work without such support, these become the accessories / components thereof and as such, classified to be called as capital goods. In the present case, the impugned articles were required to suitably support and facilitate the smooth functioning of the machines of the sugar mill and as such, while applying the above principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Expansion of the Sugar Mill of the appellant that the appellant purchased the impugned structures to be installed for the fabrication of plant and machinery and thus, the structures purchased were not merely the staging structures, but was actually the sugar machinery, and thus, were falling under Chapter 84. The structure purchased being the capital goods that the appellant has rightly availed the Cenvat Credit. It is submitted that the adjudicating authorities below have overlooked that the impugned structures are the components/ spares/ accessories of the sugar machinery of the appellant. The Circular No.964/07/2012 dated 2 April, 2012 has also been absolutely ignored by the adjudicating authorities. The authorities have also failed to consider the Chartered Engineers Certificate. The case law as relied upon by the adjudicating authority is impressed upon to be not applicable to the facts and circumstances of the present case. The order under challenge is therefore, prayed to be set aside. Appeal is prayed to be allowed. 4. While rebutting these arguments, it is admitted on behalf of the Department that the Adjudicating Authorities below have relied upon the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - but shall not include cement, angles, channels, Centrally Twisted Deform bar (CTD) or Thermo Mechanically Treated bar (TMT) and other items used for construction of factory shed, building or laying of foundation or making or structures for support of capital goods; Further, the term Capital Goods has been defined in Rule 2(a) of the Cenvat Credit Rules, 2004, which reads as under : (a) Capital Goods means :- (A) the following goods, namely :- (i) all goods falling under Chapter 82, Chapter 84, Chapter 85, Chapter 90 [heading 6805, grinding wheels and the like, and parts thereof falling under heading 6804] of the First Schedule to the Excise Tariff Act; (ii) pollution control equipment; (iii) components, spares and accessories of the goods specified at (i) and (ii); (iv) moulds and dies, jigs and fixtures; (v) refractories and refractory materials; (vi) tubes and pipes and fittings thereof; and (vii) storage tank, used - (1) in the factory of the manufacturer of the final pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng. 9. Keeping in view the same, the principal of user test as has been held by Hon ble Apex Court in the case of CCE, Jaipur v. Rajasthan Spinning Weaving Mills Ltd., 2010 (255) E.L.T. 481 (S.C.), 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 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 not merely for the fabrication of support structures for capital goods, but for making the equipment to function technically. Thus, these structures are actually the component of sugar mills without which it cannot give the output efficiently. 10. It is apparent from the submissions of the appellant that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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