TMI Blog2017 (3) TMI 868X X X X Extracts X X X X X X X X Extracts X X X X ..... - Dated:- 20-1-2017 - Shri V. Padmanabhan, Member (Technical) Ms. Rinki Arora, Advocate for the Appellant Sh. M.R. Sharma, DR for the Respondent ORDER The present appeal has been filed against the order passed by the Commissioner Central Excise, Raipur dated 31.05.2010. The appellant have a plant for crushing and screening of iron ore lumps on job work basis for their clients. The appellants were to unload the iron ore lumps received from their clients in Railway wagons, load the same into the tippers, transport the lumps from railway siding to the crushers and thereafter load the processed and sized ore into trucks for dispatch to their clients. For the entire activity (the main activity of which is crushing and sizin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pporting structure and hence, are not eligible for Cenvat credit. The Counsel submits that cenvat credit is being allowed for structural items used in supporting structures for capital goods consistently by the Tribunal. She has cited the following decisions to allow such Cenvat credit:- i. Mundra ports Special Economic Zone Ltd. Vs. C.C.E. Cus. 2015 (39) S.T.R. 726 (Guj.). ii. India Cements Ltd. Vs. CESTAT, Chennai 2015 (321) E.L.T. 209 (Mad.) iii. M/s Manglam Cement Ltd Vs Commissioner of Central Excise, Jaipur 2017-TIOL-141-CESTAT-DEL. iv. Ultratech Cement ltd Vs Commissioner of Central Excise and Service Tax, Jaipur-I 2017-TIOL-91-CESTAT-DEL. 4. Cenvat credit amounting to ₹ 18,12,418/- has been disall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice, for which the tippers are required for providing the service, the cenvat credit should be allowed. 6. Ld. DR reiterates the order of the ld. Commissioner. He further submits that the cenvat credit has been rightly disallowed. Since, the output service provided by the appellant is Business Auxiliary Service classifiable under Section 65(105)(zzb), which does not find place in the definition under Rule 2(a)(B), accordingly, the cenvat credit with reference to tippers has been rightly allowed. 7. He, however, agrees that the credit on structural items used for making support structure of capital goods has been allowed by Tribunal in the decisions cited by the ld. Advocate. 8. I find that the issue of Cenvat credit availed on supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is obvious that the structural items have been suitably worked upon for this purpose. Accordingly, the goods fabricated, using such structurals, will have to be considered as parts of the relevant machines. The definition of Capital Goods‟ includes, components, spares and accessories of such capital goods. Accordingly, applying the User Test to the facts in hand, we have no hesitation in holding that the structural items used in the fabrication of support structures would fall within the ambit of Capital Goods‟ as contemplated under Rule 2(a) of the Cenvat Credit Rules, hence will be entitled to the Cenvat Credit . 8. In view of the ratio laid down in various decisions of this Tribunal, Hon‟ble High Courts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relating to unloading of iron ore lumps from railway wagon, loading into tippers, road transportation from railway sidings to their premises and loading of sized ore to truck for dispatch to customers which falls under cargo handling services‟. Thus even though they have taken single registration under business auxiliary services they have been discharging service tax on the entire value of services including that of cargo handling. In view of the above, they claimed the credit on tippers under rule 2(a)(B) of the Cenvat Credit Rules, 2004. 7.2.1.3 I find that even if the Noticee are undertaking the activities relating to unloading of iron ore lumps from railway wagon, loading into tippers, road transportation from railway siding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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