TMI Blog2022 (5) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... ion has been set aside on 13.09.2017, i.e. after the date of passing of the appeal order impugned herein. The contentions of the Ld. Advocate is agreed upon that the very basis followed by the Learned Commissioner (Appeals) has now been settled in their favour. In the facts of the present case, it is not in dispute that the various steel items have been used for the purpose of setting up of sponge iron kiln along with the power plant as also certified by the Chartered Engineer have been duly verified by the lower authorities in the adjudication stage. Therefore, applying the user test principle, as followed by the various High Courts, the assessee is entitled to avail credit on the steel items. Appeal dismissed - decided against Revenue. - Excise Appeal No.75363 & 75386 of 2014 - FINAL ORDER NO. 75264-75265/2022 - Dated:- 10-5-2022 - SHRI P. K.CHOUDHARY, MEMBER (JUDICIAL) AND SHRI P.ANJANI KUMAR, MEMBER (TECHNICAL) Shri H.S.Abedin, Authorized Representative for the Revenue Shri Kartik Kurmy, Advocate for the Assessee/Respondent ORDER Both the present Appeals have been filed against Order-in-Appeal dated 23.12.2013 passed by the Learned Commissioner ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Commissioner (Appeals) disallowed credit of Rs. 25,63,542/- on steel items by considering the same to be used for structural and mechanical support purpose by relying on the decision of the Tribunal s Larger Bench in the case of Vandana Global Limited vs. CCE 2010 (253) ELT 440, wherein it has been held that the amendment brought vide Notification No. 16/2009-CE dated 07.07.2009 in the definition of input disallowing credit on structural items to be applicable with retrospective effect. The Learned Commissioner (Appeal), however, set aside the entire penal amount of Rs. 1, 04, 84,542/- with the observation that the issue involved interpretation of legal provision, there could not be any case of malafide intention on the part of the assessee. 3. Heard Shri Kartik Kurmy, Learned Advocate for the assessee and Shri H S Abedin, Learned Authorized Representative for the Respondent/Revenue for the Revenue and perused the appeal records. The Ld. Advocate for the assessee made extensive arguments to support his case and also submitted detailed written submissions. The Learned Authorized Representative for the Revenue supported the impugned order to the extent credit has been disal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with approval by the Madras High Court in M/s. Thiruarooran Sugars v. Customs, Excise and Service Tax Appellate Tribunal (CMA 3814/2014 and connections) decided on 10-7- 2017 [2017 (355) E.L.T. 373 (Mad.)] to conclude that the said amendment cannot be treated as clarificatory. M/s. Thiruarooran Sugars also considered the issue as to the effect and fundamental value of the evidentiary 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efinition of capital goods. The Court, went on to further hold that such equipment had to be treated as an accessory. As a matter of fact, in Saraswathi Sugar Mills case, the Court, while noticing the view taken in Rajasthan Spinning and Weaving Mills Limited said that as long as it could be shown that the item in issue was an integral part of the machinery, i.e., capital goods, it would fall in the definition of component and thus, by logical extension, come within the ambit of capital goods . 43.1 To be noted, Hon ble Mr. Justice D.K. Jain, (as he then was), was party to both the judgments rendered by the Supreme Court i.e., Rajasthan Spinning and Weaving Mills Limited as well as Saraswathi Sugar Mills Limited case. 43.2 Therefore, quite clearly, the two judgments referred to above cannot be read in the manner, as the Revenue is seeking to read them, that is, at cross purposes. In our opinion, the ratio of the two judgments, is that, as long as it is shown that the component and/or accessory is an integral part of the capital goods, (which, in turn, fall within the scope and ambit of the expression capital goods , referred to in Rule 2(a)(A)(i) of the 2004 Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
