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TMI Blog2024 (11) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Tribunal in the case of M/S. MANGLAM CEMENT LTD. VERSUS C.C.E., JAIPUR-I [ 2018 (3) TMI 1547 - CESTAT NEW DELHI] , wherein it is held that CENVAT credit on various inputs such as MS Angles, MS Channels, MS beams, MS joists, MS plates, etc., used in the fabrication of various machineries, support structure, platforms for machineries and equipment, etc., used in the factory, is admissible. For the period from 07.07.2009 to April 2011, the definition of input under Rule 2(k). The Explanation 2 has been inserted to the said definition vide Notification No.16/2009CE(NT) dated 07.07.2009. Consequently, the items viz., HR coils, HR Sheets, M.S. Angles, M.S. Channels and MS plates, etc., has been specifically excluded from the scope of the definition of inputs . For the period prior to 07.07.2009, the appellants are eligible to avail CENVAT credit on the inputs viz., HR coils, HR Sheets, M.S. Angles, M.S. Channels and MS plates, etc., and accordingly, demand confirmed is not sustainable; for the period 07.07.2009 to April 2011, in principle CENVAT credit on the inputs viz., HR coils, HR Sheets, M.S. Angles, M.S. Channels and MS plates, etc., are not admissible. Consequently, the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olely on the basis of the decision of the Larger Bench in the case of Vandana Global Ltd. Vs. CCE C, Raipur [2010(253) ELT 453 (Tri. LB)] and no dispute was raised with regard to denial of credit at any time prior to decision of Larger Bench. He has submitted that the Larger Bench decision has been reversed by the Hon ble Chhattisgarh High Court reported as Vandana Global Ltd. Vs. CCE C, Raipur [2018(16) GSTL 462 (Chhattisgarh)]. Further he has submitted that the appellant had reversed cenvat credit of Rs.89,135/- on roofing of iron sheets used for roofing of factory. Further, he has submitted that capital goods after fabrication becoming immovable property is irrelevant as the eligibility of credit has to be decided at the stage before becoming part of the immovable property. In support, they placed reliance on the following judgments:- i. CCE Vs. ICL Sugar Limited [2011(271) ELT 360 (Kar.)] ii. CCE, Bangalore-II Vs. SLR Steel Limited [2012(280) ELT 176 (Kar.)] iii. Mahindra Mahindra Ltd. Vs. CCE [2005(190) ELT 301 (LB)] 3.2. He has further submitted that the appellant claimed cenvat credit on the disputed items treating the same as capital goods as is clear from the fact that 50% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raswati Sugar Mills vs. CCE., Delhi-III - 2011 (270) ELT 465 (SC) CCE., Jaipur vs. Rajasthan Spinning Weaving Mills Ltd. - 2010 (255) ELT 481 (SC) CCE., Coimbatore vs. Jawahar Mills Ltd. 2001 (132) ELT 3 (SC) CC CE vs. Kesar Enterprises Ltd. - 2016 (344) ELT 809 (All.) Manikgarh Cement vs. CCE Cus., Nagpur - 2001 (136) E.L.T. 1085 (Tri. Mumbai) Nagpur Alloy Castings Ltd. Vs. CCE., Nagpur - 2000 (115) E.L.T. 140 (Tribunal) 3.4. He has further submitted that even if the appellant is not entitled for the cenvat credit, they are still eligible for exemption from payment of excise duty on the items used either for fabrication of capital goods or structural support for capital goods in terms of Notification No.67/1995-CE(NT) dated 16.03.1995. Further, he has submitted that in the impugned notice, the credit has been denied on the ground that the items in question are neither capital goods nor part of the capital goods; hence denying the credit by invoking exclusion clause of Explanation-2 to the definition of input under Rule 2(k) of the CCR does not arise as it would be beyond the scope of the show-cause notice and the impugned order. The credit has been denied in the impugned order as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ides and perused the records. 6. The short question involved in the present appeal is whether the appellant is entitled to avail cenvat credit on copper bars / rods, MS rods /sheets/bars, channels, flats, joists etc. used in the factory for fabrication and erection of plant and machinery. 7. We find that that the issue is no longer res integra, as far as the period prior to 07.07.2009 is concerned. It is covered by the judgment of this Tribunal rendered in the case of BMM Ispat Ltd. vs. CCE, Belgaum vide Final Order No.20270 20271 /2024 wherein this Tribunal had elaborately discussed the ratios rendered in the case of Vandana Global Ltd. (supra) and Thiru Arooran Sugars vs. CESTAT, Chennai: 2017 (355) ELT 373 (Mad.) and also decision of Larger Bench of this Tribunal in the case of Mangalam Cement Ltd. vs. CCE, Jaipur-I: 2018 (360) ELT 737 (Tri.-LB), wherein it is held that CENVAT credit on various inputs such as MS Angles, MS Channels, MS beams, MS joists, MS plates, etc., used in the fabrication of various machineries, support structure, platforms for machineries and equipment, etc., used in the factory, is admissible. It is observed that: 8.1. We find that the issue is no more re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... videntiary statement made by the Finance Minister dealing with an amendment in the budget speech. 7 . Section 37 of the Central Excise Act, 1944; for short, the Act , is a rule making power. Section 37(2)(xvia) provide for the credit of duty paid or deemed to have been paid on the goods used in, or in relation to, the manufacture of excisable goods. Section 37(2A) of the Act - The power to make rules conferred by clause (xvi) of sub-section (2) shall include the power to give retrospective effect to rebate of duties on inputs used in the export goods from a date not earlier than the 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. 8.2. It followed the judgment of Hon ble Madras High Court in the case of Thiru Arooran Sugars (supra) whereunder it is observed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the scope and ambit of both Rule 2(a)(A) and 2(k) of the 2004 Rules. 45 . For the foregoing reasons, we answer the questions, in all the three (3) appeals, which are set forth above, in favour of the assessees and against the Revenue. 8.3. Also the Larger Bench of the Tribunal taking note of the various High Courts judgment in the case of Mangalam Cement Ltd. Vs. CCE, Jaipur-I [2018(360) ELT 737 (Tri. LB)] held as follows:- 8 . Applying the user test of capital goods as enunciated by the Hon ble Supreme Court in the case of Rajasthan Spinning Weaving Mills (supra), the Hon ble Madras High Court in the case of India Cements Ltd., reported in 2012 (285) E.L.T. 341 (Mad.), 2014 (305) E.L.T. 558 (Mad.), 2014 (310) E.L.T. 636 (Mad.) and 2015 (321) E.L.T. 209 (Mad.) has extended the Modvat benefit on Cement and steel items, considering the same as capital goods under Rule 57Q of the erstwhile Central Excise Rules, 1944. Since, said rule is pari materia with the present Rule 2(a) of the CCR, 2004, the disputed goods, in the present case, should be considered as capital goods for the purpose of the Cenvat benefit. 9 . On perusal of definition of input extracted above, it would revea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e user test is applied, or the test that they are the integral part of the capital goods is applied, the assessees, in these cases, should get the benefit of Cenvat credit, as they fall within the scope and ambit of both Rules 2(a)(A) and 2(k) of the 2004 Rules. 10 . In view of above analysis, we are of the considered opinion that the eligibility to duty credit of the disputed goods cannot be denied. Such eligibility either as capital goods (accessories) or as inputs has been examined and upheld by various decisions of the Hon ble Apex Court and the Hon ble High Courts as above. Accordingly, we answer the reference in favour of the appellant. The appeal file is returned to the referral Bench for a decision on merit. 8. For the period from 07.07.2009 to April 2011, the definition of input under Rule 2(k). The Explanation 2 has been inserted to the said definition vide Notification No.16/2009CE(NT) dated 07.07.2009. Consequently, the items viz., HR coils, HR Sheets, M.S. Angles, M.S. Channels and MS plates, etc., has been specifically excluded from the scope of the definition of inputs . The said Explanation reads as follows: Explanation 2 Input include goods used in the manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X
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