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TMI Blog2023 (4) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... steel items such as sheets, plates, bars, coils, TOR steel, pipes, angles, channels etc. and utilized the same in its factory for the purpose of fabrication and/or erection of various capital goods i.e. Clinker Silo and in the packaging plant, which were in turn used for manufacturing of excisable goods i.e. cement. The said iron and steel items were also used for laying the foundation for installation of capital goods such as wagon loading platform, belt conveyor etc. used in manufacturing and clearance of excisable goods. The break up of material used and CENVAT Credit availed is as under, which stands certified by the Chartered Engineer's Certificate:- Sr. No. Project Description Quantity used CENVAT Credit involved 1 Clinker Silo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate usage of the subject goods in its factory in or in relation to manufacture is factually incorrect as the Chartered Engineer's Certificate proves that the subject goods were used within the factory of the Appellant. He further submitted that the period involved in this case is from 2005-06 to April 2008 and the Show Cause Notice was issued on 15.05.2009 which is beyond the normal period prescribed under Section 11A. Accordingly, he prayed for allowing their Appeal. 5. Ld.Authorized Representative for the Department justified the impugned order and submitted that the Appeal filed by the Appellant, being devoid of any merits, may be dismissed. 6. Heard both sides and perused the Appeal records. 7. We find t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court in Mundra Ports & Special Economic Zone Ltd. v. C.C.E. & Customs - [2015 (39) S.T.R. 726 (Guj.)], the Madras High Court in India Cement Ltd. v. CESTAT, Chennai - [2015 (321) E.L.T. 209 (Mad.)] and Thiru Arooran Sugars v. CESTAT, Chennai - [2017 (355) E.L.T. 373 (Mad.)] have held the judgment of Vandana Global (supra) not good in law. Therefore, the reasoning of the Adjudicating authority, which imposed the demand along with interest and also penalty on the Appellant, by relying upon the amendment in Explanation 2 to Rule 2(k) and also Vandana Global (supra) is clearly unsustainable. 10. Ld.Advocate for the Appellant has next submitted that circular dated 2-4-2012 has been issued in the context of the amended definition of inp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e final product or not, and includes lubricating oils, greases, cutting oils coolants, accessories of the final products cleared along with the final product, goods used as paint, or as packing material, or as fuel, or for generation of electricity or steam used for manufacture of final products or for any other purpose, within the factory of production. Explanation 1. - The high speed diesel oil or motor spirit, commonly known as petrol, shall not be treated as an input for any purpose whatsoever. Explanation 2. - Inputs include goods used in the manufacture of capital goods, which are further used in the factory of the manufacturer." (emphasis supplied) 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 011 reads as under : "2(k) "input" means, - (a) all goods used in the factory by the manufacturer of the final product; or (b) any goods including accessories, cleared along with the final product, the value of which is included in the value of the final product and goods used for providing free warranty for final products; or (c) all goods used for generation of electricity or steam (or pumping of water) for captive use; or (d) all goods used for providing any (output service); or (e) all capital goods which have a value up to ten thousand rupees per piece, but excludes - (A) light diesel oil, high speed diesel oil or motor spirit, commonly known as petrol; (B) any goods used f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue in this regard has no substance. 17. The Madras High Court in India Cement (supra) noticed Vandana Global (supra) but relied upon the Apex Court judgment in Rajasthan Spinning & Weaving Mills Ltd. (supra), wherein the Apex Court has considered an issue of steel plates and MS channels used in the fabrication of chimney for diesel generating set and after considering it, the Apex Court allowed the Cenvet credit on MS Rod, sheets, MS Channel, MS Plate, etc., used for fabrication of structures to support various machines/capital goods. 18. In Thiru Arooran Sugars (supra), a Division Bench of the Madras High Court specifically considered as to whether MS structural, (which support plant and machinery), cement and steel (whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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