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TMI Blog2022 (11) TMI 1143X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The Hon ble Supreme Court further noted that the chimney attached to the DG set was undisputedly covered by Sl. No. 5 of the table ibid. On this basis, it was held that the chimney was an integral part of the DG set and, therefore, MS channels, plates, etc., used in its fabrication were to be treated as accessories in terms of Sl. No. 5 of the table ibid. This judgement was rendered by applying the user test . The facts of the present case are perfectly analogous to those of Rajasthan Spinning Weaving Mills Ltd. It is not in dispute that MS angles, plates, etc., were used to fabricate structural support for machinery which was used for manufacturing excisable goods. It is, again, not in dispute that the machinery is squarely covered by clause (i) of Rule 2(a)(A) of the CENVAT Credit Rules, 2004. The immediate question is whether the structural support for the machinery could be treated as capital goods . Indeed, it should be construed to be an integral part of the machinery and hence to be covered by clause (i) ibid. If that be so, as held by the Hon ble Supreme Court in the aforesaid case, the plates, angles, etc., used for fabricating structural support will fall within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Act, 1944 by relying upon the decision of the larger Bench of the Tribunal in the case of Vandana Global Ltd. v. Commissioner of C.Ex., Raipur [2010 (253) E.L.T. 440 (Tri-LB)]. He also imposed a penalty of equal amount under Rule 15(2) of the CENVAT Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944. On Appeal, the Ld.Commissioner(Appeals) upheld the adjudication order and rejected the Appeal before him. Hence the present Appeal before this Tribunal. 2. The Ld.Counsel, appearing on behalf of the Appellant submits that both the lower authorities have relied upon the amending Notification No.61/2009-CE (NT) dated 07.07.2009 to deny the credit for the months of March 2008, July 2008 and January 2009. He further submits that the amending Notification has not been given retrospective effect and is not applicable to the period in dispute. 3. The Authorized Representative for the Department justifies the impugned orders and prays that the Appeal be dismissed being devoid of any merits. 4. Heard both sides and perused the appeal records. 5. The relevant facts that arise for consideration are that the Appellant has availed benefit of CENVAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ital goods defined in the CENVAT Credit Rules in the context of providing credit of duty paid, have to be excisable goods. Whether a particular plant or structure embedded to earth can be considered as excisable goods or not has to be determined in the light of the decisions of the Hon ble Supreme Court on the issue, which is no longer res integra. (b) Goods like cement and steel items used for laying foundation and for building supporting structures cannot be treated either as inputs for capital goods or as inputs in relation to the final products and therefore, no credit of duty paid on the same can be allowed under the CENVAT Credit Rules for the impugned period. 4 . In the light of the contents of the impugned order of the Tribunal and submissions of the assessee and the Revenue following substantial questions of law are formulated for consideration : (A) Whether the terms capital goods excludes the structures embedded to earth? (B) Whether the goods like angles, joists, beams, bars, plates, which go into fabrication of such structures are not to be treated as input used in relation to their final products as inputs for capital goods, or none of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... changes in the rates of duty on such inputs. Though the power to make rules include the power to give retrospective effect, while doing so the provision under consideration is neither made retrospective nor could it be treated as one. 8 . We are in complete agreement with the ratio of Mundra Ports (supra) and M/s. Thiruarooran Sugars (supra) on all fours. 9 . Resultantly, we answer the questions formulated in these appeals in favour of the assessees and against the Revenue. 6. I find that clause (i) of Rule 2(a)(A) is parimateria with clause (3) of the table annexed to Rule 57Q. Similarly, clause (iii) of Rule 2(a)(A) is parimateria with clause (5) of the table annexed to Rule 57Q. In the case of Rajasthan Spinning Weaving Mills Ltd. (supra), the Hon ble Supreme Court considered the question whether the steel plates and channels used in the fabrication of chimney for DG set would fall within the purview of Sl. No. 5 of the table annexed to Rule 57Q. The Hon ble Supreme Court observed that the DG set fell under Heading No. 85.02, Chapter 85, of First Schedule to the Central Excise Tariff Act and ipso facto got covered under Sl. No. 3 of the table ibid. The Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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