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TMI Blog2020 (12) TMI 819X X X X Extracts X X X X X X X X Extracts X X X X ..... ificate dated 23 August 2016 certifying that the credit of ₹ 2,42,79,485/- pertains directly in respect of the plant, machinery, equipments and other goods squarely covered by the definition of capital goods. Therefore, cenvat credit of ₹ 2,42,79,485/- does not at all pertain to cement and steel items falling under Chapter 72/73 but explicitly covered by the definition of capital goods under Rule 2(a) of the Cenvat Credit Rules and the demand to that extent does not survive. Applicability of Explanation 2 to the definition of inputs inserted with effect from 7 July 2009 - HELD THAT:- There is no blanket or absolute bar in claiming credit on the disputed items, unless used for the purposes specifically excluded in Explanatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heti, Chartered Accountant for the Appellant (s) Shri A.K.Biswas, Authorized Representative for the Respondent (s) ORDER This appeal is directed against the impugned Order dated 26 May 2016 passed by the Commissioner, Haldia Commissionerate, whereby recovery of Cenvat Credit of ₹ 3,00,47,898 alleged to have been wrongly availed was confirmed along with interest and equivalent penalty. 2. The facts of the case in brief are that the Appellant is engaged in the manufacture and clearance of dutiable goods from its factory at Haldia, West Bengal, operating under the Cenvat Credit Scheme. Pursuant to an audit objection, proceedings were initiated against the Appellant alleging irregular availment of Cenvat credit of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates this assertion of the Appellant. (b) That the Cenvat credit in the instant case was taken on the disputed items only to the extent these were used in fabrication of storage tanks, which is specified as capital goods under Rule 2(a)(A)(vii) of the Cenvat Credit Rules and the said use is supported by a certificate dated 1 June 2015 from the Chartered Engineer, M/s. Associated Services. The adjudicating authority has not refuted the certificate of the chartered engineer in any manner and in the absence of any contrary evidence, the Certificate of the expert could not have been disregarded in view of the following decisions: - Rav S. Steel Pvt. Ltd. Vs. CCCE ST, Guntur 2018 (363) ELT 468 (para 7); Inter Continental Vs. UOI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t warranting the invocation of the extended period. 4. The learned Authorized Representative appearing on behalf of the Revenue supports the Order-in-Original and reiterates the findings of the Adjudicating Authority. 5. Heard both sides through video conferencing and perused the appeal records. 6. We find that the following two issues arise for our consideration in this appeal. (i) Whether the disputed capital goods credit of ₹ 3,00,47,898/- availed during the period from 2010-11 to 2012-13 was entirely in respect of cement and steel items classifiable under Chapter 72/73 of the Central Excise Tariff Act, 1985. (ii) Whether Cenvat credit on cement and steel items is not available in the instant case in view of Explanat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(a) of the Cenvat Credit Rules and the demand to that extent does not survive. 8. In so far as issue no (ii) is concerned, we find that there is no blanket or absolute bar in claiming credit on the disputed items, unless used for the purposes specifically excluded in Explanation 2 to the definition of inputs. The Appellant had placed a Certificate dated 1 June 2015 from the Chartered Engineer, M/s. Associated Services in support of their contention that the disputed items were used in the fabrication of the storage tanks within the factory premises. The adjudicating authority has not disputed the said Certificate from an expert and does not disclose any basis either to come to the conclusion that the disputed items were used for the spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anation has been amended to the following effect : but shall not include cement, angles, channels Centrally Twister Deform bar (C.T.D.) or Thermo Mechanically Treated bar (TMT) and other items used for construction of factory shed, building or laying of foundation or making of structures for support of capital goods. 8 . Therefore, the notification of the Legislature is very clear that it is only the inputs used in the manufacture or construction of capital goods which is construed as input and cenvat credit is available on the duty paid in purchase of such inputs. If the cement, angles, channels, Centrally Twister Deform bar (C.T.D.) or Thermo Mechanically Treated bar (T.M.T.) and other items are used in the constructio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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