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TMI Blog2024 (5) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... unal in Vandana Global Ltd., which judgment have been reversed and allowed in favour of the assessee by the Hon ble Chattisgarh High Court in M/S VANDANA GLOBAL LIMITED AND OTHERS VERSUS COMMISSIONER, CENTRAL EXCISE AND CUSTOMS, CENTRAL EXCISE [ 2018 (5) TMI 305 - CHHATTISGARH, HIGH COURT] . In this view of the matter, the appellant is entitled to Cenvat Credit of the capital goods / inputs like EOT Cranes, 3D Marking and Layout Machine, Sand Feed Hopper, Reclamation Tower, Rail for transfer car etc., which have been admittedly received in the factory for use. We further hold, eligibility to Cenvat Credit has to be considered on the day goods are received. It is not the subsequent user which decides the eligibility of Cenvat Credit. The imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007-08 to 2010-11 it was observed by the department that the Appellant has availed credit on MS items as ineligible credit availed on capital goods used in manufacture of finished goods. 6. During the period 2007 to 2011 the appellant availed Cenvat Credit on various MS items as capital goods used in the erection of machinery. The MS items are used as the bed of the machinery, and accordingly do not fall under the definition of capital goods pursuant to explanation 2 to Rule 2(k) of CCR, which excludes structural items as per the decision of the Larger Bench in the case of Vandana Global Ltd. v. CCE, Raipur. 7. The MS items used in building support structures have no nexus with the process of manufacture. 8. The MS items are used as perman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 442/- was availed on MS items used for structural support, prior to 07.07.2009. Even as per the annexure to the SCN, the credit availed after 07.07.2009 is Rs. 22,089/- being 50% of the balance credit availed in April 2010. 13. Further, the credit to the tune of Rs.12,81,838/- was availed in respect of items used in the factory for manufacture of final products. 14. The Appellant also relies on the decision in the case of M/s. Singhal Enterprises Pvt Ltd Vs. Commr of Cus C.Ex, Raipur reported at [2016 (341) E.L.T.372 (Tri-Del)] where the period was after 07.07.2009 and reliance was placed on the CCE, Coimbatore v. Jawahar Mills Ltd. [2001 (132) E.L.T. 3 (S.C.)] and it was held as under : Now we turn to the question, whether credit is admiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference to the decision of the Apex Court in the case of CCE, Jaipur v. Rajasthan Spinning Weaving Mills Ltd., 2010 (255) E.L.T. 481 (S.C.), wherein the Hon ble Supreme Court has considered an identical issue of steel plates and MS channels used in the fabrication of chimney for diesel generating set. The credit stands allowed in the light of Rule 57Q of the erstwhile Central Excise Rules, 1944. In the said judgment, the Apex Court has referred to the user test evolved by the Apex Court in the case of CCE, Coimbatore v. Jawahar Mills Ltd., 2001 (132) E.L.T. 3 (S.C.), which is required to be satisfied to find out whether or not particular goods could be said to be capital goods. When we apply the user test to the case in hand, we find tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court of Chattisgarh in the case of Vandana Global Limited Vs CCE, Raipur 2018 (16) GSTL 462 and reliance is also placed on the decision of Mundra Ports Special Economic Zone Ltd. Vs. CCE C - 2015 (39) STR 726 (Guj.). 17. The Appellant submits that the explanation which came into effect from 07.07.2009, is only prospective in nature. In this regard reliance is placed on the decision in the case of M/s Prism Cement Limited Vs. Commissioner of Excise and Service Tax reported at [2016-TIOL- 3261-CESTAT-DEL] wherein it was held as under : It is the case of the appellant that exclusion made w.e.f. 7.7.2009 as per the amended definition under Rule 2(k) of CCR is of no relevance to their case. The exclusion made is to the effect that the inputs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es prior to 07.07.2009 and it is settled position of law that the relevant date for deciding availing of credit, is the date of receipt of goods in the factory. Reliance is placed on the following decisions: (a) Grasim Industries Limited Vs. Commissioner of Central Excise, Trichy [2004 (176) E.L.T. 265 (Tri. Chennai)] (b) CCE v. Hindustan Zinc [2023 (7) TMI 427 - CESTAT NEW DELHI] 20. The Appellant further submits that entire demand is barred by limitation and extended period cannot be invoked in the present case as the credit availed is clearly disclosed in the returns and vide letter dated 10.08.2008, the Appellant intimated the jurisdictional range office regarding setting up of unit and availment of credit on capital goods. Further, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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