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TMI Blog2024 (8) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... -Original upheld by the Commissioner (Appeals), in as much as the said certificate was considered as not sufficient to prove whether they were actually utilised in the fabrication of the capital goods or otherwise. Therefore, Rule 9(5) of CCR 2004 has not been considered. The facts of the case are more or less identical bearing few items the grounds taken for confirming demand, grounds and reasons for grant of relief by Tribunal are different. Firstly, in their order Tribunal had not examined applicability of Rule 9(5) of CCR. Also, though it was claimed as input in the relevant period, in the present appeal it has been claimed as capital goods . Admittedly, the declaration of capital goods was under different rules during the said period and apparently because of that it was claimed as input and not as capital goods. The format of Chartered Engineer s certificate perused by the Tribunal was also different than the one relied upon by the appellant in present appeal - the judgment in M/S. BERRY ALLOYS LIMITED VERSUS COMMISSIONER OF CENTRAL TAX, VISAKHAPATNAM-I [ 2022 (5) TMI 797 - CESTAT HYDERABAD] cannot be applied in totality for deciding the present appeal where facts and submiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ister, technical feasibility of utilisation of such items in the intended capital equipment, drawings, designs etc., to satisfy whether such items were required for manufacturing of final goods etc. This becomes more important especially when most of these items have multiple uses and can be used for various purposes and some of these items cannot be used for the intended purposes if they are not having specified technical parameters compatible with such use because of the high temperature etc., where only a specified variety of sheets, plates etc., can be used. Therefore, though theoretically these items can be considered as components, parts etc., for these equipments but were they actually used for such fabrication or uses as detailed in the Chartered Engineer certificate needs further corroboration to the satisfaction of the Competitive Authority. There are much force in the argument of the Department that in the present appeal, the appellants have failed to satisfy the lower authorities as regards its actual use which is crucial to decide usage and the extent of it s usage. Thus, in the fact of the case and statutory provisions what is needed is the verification and corroborat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the definition of capital goods under Rule 2(a)(A) o Cenvat Credit Rules 2004 (CCR) - by either not being specified by way of their tariff sub-headings or by finding place in their categories mentioned under Rule 2(a)(A), and (ii) Considering the usage submitted by assessee for these goods, Department felt that in view of Board Circular dated 15.01.2012 issued under Section 37(B), these items having been used as parts in construction or in furnace and other equipments attached to earth which cannot be considered as excisable goods, and therefore these goods used for making furnace and other equipments leading to change in the identity from parts to such equipments attached to earth. The Department also invoked the provisions of Rule 9(5) of Cenvat Credit Rules which casts burden on the assessee to prove the admissibility of the credit taken by him. 3. On adjudication, the Original Adjudicating Authority considered their submissions especially that such items covered in Show Cause Notice were to be considered as components, parts etc., for capital goods and by virtue of that they would be covered within the definition of capital goods. As regards usage, the appellant had submitted a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scussed above) is not sufficient. The facts in the present case clearly bring out that the ratio of the judgment cited by the appellant have been accepted by the Adjudicating authority however the facts of the case required sufficient evidence to determine the usage of goods. It is more relevant as a definition of input under Cenvat Credit Rules, 2004 was amended in 2009 so as to exclude but shall not include cement, angles, channels Centrally Twister Deform Bar (C.T.D.) or Thermo Mechanically Treated bar (TMT) and other items used for construction of factory shed, building or laying of foundation or making of structures for support of capital goods. I do not find any infirmity in the order of the Adjudicating Authority. 5. Learned Advocate for the appellant reiterates the submissions made in the appeal memorandum and also points out that the matter is no longer res-integra in view of earlier order of Tribunal in Excise appeal no. 23786/2014 order dated 09.05.2022 in their own case wherein for the period September 2010 to July 2012 the Tribunal has set aside the order of the Adjudicating Authority confirming the demand. She has also tried to explain that Chartered Engineer s certif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) TMI 529 (KARHC)]. 7. Heard both the sides and perused the documents. 8. The main issue to be decided in this case is as follows: (i) whether the case is no longer res-integra in view of the order dated 09.05.2022 passed by the Tribunal in their own case (ii) whether these items are covered within the definition of capital goods or otherwise (iii) whether the Chartered Engineer s certificate submitted by the appellant sufficient to discharge the responsibility placed on appellant under Rule 9(5) of CCR 2004. 9. I have perused order dated 09.05.2022 in the Final Order No. A/30058/2022, wherein, the Tribunal had considered similar matter in respect of same appellant for the period September 2010 to July 2012 and one of the main observations of the Tribunal was that no cogent findings have been given by the Learned Adjudicating Authority in respect of nonacceptance of Chartered Engineer s certificate and the ground on which Cenvat Credit was denied was the fact that the capital equipment in question were embedded to earth and hence become immovable property. The items covered were more or less same. The Tribunal after going through the submissions and facts of the case held that Char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in present appeal. 12. Therefore, I find that the judgment dated 09.05.2022 cannot be applied in totality for deciding the present appeal where facts and submissions are slightly different as well as the rule position is also different. Therefore, this ground of the appellant is not tenable. As far as the second issue, whether these items can be considered as capital goods or not, I find that in the light of the facts stated in the show cause notice as also in terms of the provisions under Rule 2(a)(A) of CCR, these items, per se, could be considered as capital goods, if they are used as components etc., of capital goods specified at Rule 2(a)(i) and (ii). It is not the case, nor disputed by Department that various capital goods were fabricated/manufactured at site within the factory and that they were not falling under Chapter 82, 84, 85, 90 etc., or Pollution Control Equipment. In fact, the impugned order has tacitly accepted that these items could be considered as components. What is being disputed is whether these items were actually used as components of the capital goods covered within the definition of capital goods under Rule 2(a) within the factory in view of insufficiency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, appellant has been able to specify the usage of such components in the capital goods fabricated within the factory of production or otherwise. The appellants have relied solely on one document in support of their usage in capital goods and that is Chartered Engineer s certificate issued by Shri R K L Prasad wherein various details of credit taken and its utilisation in the main equipment have been indicated. This certificate, interalia, also links the quantity of impugned goods to the main equipment and also describes the uses of main capital equipment in making the final excisable goods. What is however not forthcoming from the certificate is the item s descriptions describing some of the very basic specifications like size, quality standard/parameters etc. From the description given by the Chartered Engineer, it is also not clear as to when and how such items were actually issued for fabrication of the intended main equipment. It also does not show what documents were verified and whether they had verified issue register, technical feasibility of utilisation of such items in the intended capital equipment, drawings, designs etc., to satisfy whether such items were required fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit. Thus, the burden of proof relating the admissibility of Cenvat Credit shall lie upon the manufacturer. In this case, they have not clearly discharged this burden which was invoked in the show cause notice itself. It has been clearly held and upheld that mere production of Chartered Engineer s certificate was not sufficient to discharge this burden. Learned DR has relied on certain judgments in the case of CCE ST, Haldia Vs Emami Agrotech Ltd., where the Hon ble High Court of Calcutta, interalia, held that onus is on the part of the assessee to produce documents to show that the certificate has been issued upon verification of all details, which has not been done by the assessee. There was no record to rely upon by the Tribunal which corroborates the certificate issued by the Chartered Accountant. Similarly in the case of Commissioner of Central Excise, Aurangabad Vs Toyota Kirloskar Motors Ltd., [2010 (256) ELT 216 (Kar)], Karnataka High Court, interalia observed that it cannot be universally held that certificate itself is sufficient to establish that the incidence of duty has not been passed on to the buyers. In the case of Commissioner of Customs (Exports), Custom House Vs ..... 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