TMI Blog2017 (1) TMI 1180X X X X Extracts X X X X X X X X Extracts X X X X ..... hin the normal period. The Department has not been able to identify or substantiate with any evidence that the appellant has used the MS items for fabrication of foundations / civil works / sheds. The reason for disallowing credit is that the support structures when embedded to the earth will become immovable property and therefore not eligible for credit. In a recent decision in the case of Ultra Tech Ltd. Vs. CCE Indore [2016 (9) TMI 1097 - CESTAT NEW DELHI], the Tribunal has made a detailed discussion that capital goods when fixed to the earth using support structures cannot be considered to be immovable property and that credit cannot be disallowed - there is no evidence to show that the appellant has used the MS items for fabricati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. Hence the appellants are now before the Tribunal. 3.1. On behalf of the appellant, the learned counsel Shri Y. Sreenivasa Reddy submitted that the MS items were used for fabrication of various capital goods and their supporting structures during the relevant period. Learned counsel argued both on limitation and on merits. He submitted that part of the demand would be barred by limitation as the appellant had disclosed the availment of credit in the statements filed along with ER1 returns. The appellant has not suppressed any facts from the Department as alleged in the show-cause notice. He adverted to the statement filed along with ER1 returns and submitted that the appellant had disclosed the quantity of the MS items used for each o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cter of immovable property. He also relied upon the decision laid in the case of India Cements Ltd. Chennai [2015-TlOL-650-HC-MAD-CX], India Cements Ltd. vs. CCE, Guntur [2016-TlOL-2536-CESTAT-HYD], Matrix Laboratories Ltd. Hyderabad-I [2016(339) ELT 122 (Tri. Hyd)]. 4. Against this, learned AR Shri M. Chander Bose submitted that the appellants failed to disclose the details of the credit availed in the ER1 returns and therefore are guilty of suppression of facts. The show-cause notice issued invoking extended period is therefore legal and proper. He adverted to the discussions in the impugned order and submitted that the appellants have not produced any documents to support that the MS items were used for fabrication of capital ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... items received into the factory were diverted in any manner. The main allegation is that the appellant has not issued slips, work orders etc. for fabrication of the capital goods / parts / components. It is worthwhile to mention that in the statements submitted along with the ERI returns, the appellants have disclosed the details with regard to MS items used for fabrication of capital goods and parts thereof. But the show-cause notice was issued for the period from August 2007 to March 2010 invoking the extended period of limitation. The credit seems to be disallowed stating the reason that the appellant has not produced issue slips, work orders etc. for fabrication of capital goods. When the appellant has disclosed the detail in each of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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