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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 ..... h 2008, July 2008 and January 2009 in respect of Joist, MS Channel, MS Joist, TMT Bars, Plate, RS Joist, MS Angles, etc. In their reply to the Show Cause Notice the assessee submitted that the steel items were used in the manufacture of capital goods and also for structural accessories to the plant and machineries. It is also submitted that there is no dispute that the inputs were used in the manufacture of capital goods. The assessee also relied upon the Chartered Engineer's Certificates dated 25.02.2009 evidencing the usage of iron and steel products in the manufacture of furnace, pollution control equipments, structural for erection, installation and commissioning of machinery in the factory. The Ld.Adjudicating authority confirmed the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l goods or its components. On the basis of such conclusion a Show Cause Notice was issued on 25.10.2012 proposing to demand an amount of Rs.1,61,856/-, which does not qualify as 'input' under the definition laid down in terms of provisions of Rule 2 of the said Credit Rules, as the said steel articles were used in the civil construction of the Plant, Sheds and Building as well as structural support which does not have any nexus/pertinence in or in relation to manufacture of the excisable goods. 6. The issue involved is whether the Appellant had rightly availed CENVAT Credit of Central Excise duty paid on Joist, MS Channel, MS Joist, TMT Bars, Plate, RS Joist, MS Angles etc. I find that the foundation of the adjudication order passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oviding 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 subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eks to clarify existing provision. Even, if the new provision is added then it will be new amendment and cannot be treated to be clarification on particular thing or goods and/or input and as such, the amendment could operate only prospectively." 6. That view has been quoted with approval by the Madras High Court in M/s. Thiruarooran Sugars v. Customs, Excise and Service Tax Appellate Tribunal (CMA 3814/2014 and connections) decided on 10-7- 2017 [2017 (355) E.L.T. 373 (Mad.)] to conclude that the said amendment cannot be treated as clarificatory. M/s. Thiruarooran Sugars also considered the issue as to the effect and fundamental value of the evidentiary statement made by the Finance Minister dealing with an amendment in the budget speech ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. (supra). It is not in dispute that MS angles, plates, etc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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