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TMI Blog2022 (5) TMI 797X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of machinery, the non-consideration of the Certificate issued by the Chartered Engineer by the Adjudicating authority seems to be not in consonance with law. Further, receipt of goods and thereafter use for fabrication as per Chartered Engineer s Certificate is not contested, but contested only on a point that the inputs do not fall under the category of capital goods and hence not eligible for Cenvat credit, will not support the case of the Revenue. Since the issue is no more res integra and is decided by the higher Courts, the impugned order is unsustainable and is liable to be set aside. Appeal allowed - decided in favor of appellant. - Excise Appeal No.23786 of 2014 - A/30058/2022 - Dated:- 9-5-2022 - SHRI P.K.CHOUDHARY, ME ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal. 2. The Ld.Advocate, appearing on behalf of the Appellant, submitted that the Ld.Commissioner has not taken into consideration the various submissions of the Appellant. The Appellant had filed Chartered Engineer s Certificate regarding utilization of various items. No finding has been given by the Ld.Commissioiner in respect of the Chartered Engineer s Certificate. It is his submission that the Chartered Engineer s Certificate indicates whether the various items were used in the factory and its purpose. When an expert viz. a Chartered Engineer has examined each and every disputed item and has considered its usage and its necessity, the same cannot be questioned unless there is a contra evidence. The Ld.Advocate further submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Adjudicating authority failing which it could not be ascertained as to how much quantity of structural steel materials were used for various items of capital goods as claimed to have been fabricated. As regards limitation, it is submitted that the irregular availment of Cenvat has come to light only after conducting audits of the Appellant. Accordingly, he prayed that the Appeal, being devoid of any merits, may be dismissed. 4. Heard both sides and perused the Appeal records. 5. Both sides have filed synopsis and Written Submissions. However, the Ld.Advocate on behalf of the Appellant, has also filed a compilation of relied upon judicial decisions. We find that during the audit for the period from September 2010 to July 2012, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, Channels/MS Channels, MS Lancing Pipes, MS Rounds, MS Bars Short length, Metal Roofing Sheets, SS Plates, MS Plates, Joists, Lightening Arrestors, ISMB, ISMB 600, HR Plates, CI Pipes, MS Joists, HR SS Plates, HR Steel etc. by treating these goods as inputs within the meaning of Rule 2 (k) of Cenvat Credit Rules, 2004. These goods were used in the fabrication of furnace, pollution control equipments and other capital goods which were allegedly used in the factory of the Appellant in the manufacture of the finished goods. 6. We find that the main ground for denying the credit as discussed in the impugned order is that the Appellant failed to furnish sufficient documentary evidence that the impugned items were used in fabrication of ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipur Vs. Rajasthan Spinning Weaving Mills Ltd. [2010 (225) E.L.T. 481 (S.C.)], where the Hon ble Supreme Court by relying on the decision of Commissioner of Central Excise, Coimbatore Others vs. Jawahar Mills Ltd. Others [2001 (132) ELT 3 (S.C.)], has dismissed the Appeal preferred by the Revenue by applying user test. The relevant paragraphs are reproduced :- 6 . Per contra, Mr. B.L. Narsimhan, learned counsel appearing on behalf of the assessee supported the decision of the Tribunal. He submitted that the issue sought to be raised by the Revenue in this appeal stands concluded in favour of the assessee by a decision of this court in Commissioner of Central Excise, Coimbatore Ors. v. Jawahar Mills Ltd. Ors., wherein observi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e; and (c) moulds and dies, generating sets and weighbridges used in the factory of the manufacturer. 12 . Inter alia observing that capital goods can be machines, machinery, plant, equipment, apparatus, tools or appliances if any of these goods is used for producing or processing of any goods or for bringing about any change in the substance for the manufacture of final product, although this view was expressed in the light of the afore-noted definition of capital goods in the said Rule, which is not there in Rule 57Q, as applicable in the instant case, yet the user test evolved in the judgment, which is required to be satisfied to find out whether or not particular goods could be said to be capital goods, would apply on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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