TMI Blog2023 (11) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee by Karnataka High Court in SLR Steel Ltd. s case [ 2012 (9) TMI 169 - KARNATAKA HIGH COURT] . The said judgment has been followed by this Tribunal in the Appellant s own case vide Final Order No. 20701/2023 dated 06.07.2023 [ 2023 (8) TMI 696 - CESTAT BANGALORE] . The scope of the definition of capital goods under erstwhile Rule 57Q has been examined by the Hon ble Supreme Court in Rajasthan Spinning Weaving Mills Ltd s case [ 2010 (7) TMI 12 - SUPREME COURT] . The issue involved in the said case was regarding admissibility of Modvat credit in respect of steel plates and MS channels used in the fabrication of chimney installed in the factory premises. It was argued by the Revenue that steel plates and MS channels classifiable under Chapter 7208.11 and 7216.10 of CETA,1985 cannot be considered as capital goods, hence, credit is inadmissible on the said items - The Hon ble Supreme Court analysing Rule 57Q and following the user test laid down in Jawahar Mills s case [ 2001 (7) TMI 118 - SUPREME COURT] , held that MS channels, steel plates and angles used in fabrication of chimney would fall within the definition of capital goods. Also, a major amount of Cenvat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th dated 29.11.2002 the adjudicating authority confirmed demand of Rs.86,37,120/- with interest and imposed penalty of Rs.5,00,000/- and allowed Cenvat Credit of Rs.11,40,793/- against the first Notice; confirmed demand of Rs. 86,64,13/- with interest and penalty of Rs.5,00,000/- and allowed Cenvat Credit of Rs.12,98,552/- against the second Notice. Aggrieved by the said orders, the appellants filed appeals before the ld. Commissioner (Appeals), who upheld the order of the adjudicating authority. Aggrieved by the said orders of ld. Commissioner (Appeals), the appellants filed appeals before the Tribunal and this Tribunal vide Order Nos. 127-128/2011 dated 08.02.2011 remanded the matter to the adjudicating authority for de-novo consideration. In the de-novo adjudication, the adjudicating authority by Orders dated 31.12.2012 had allowed the Cenvat Credit of Rs.16,43,311/- and rejected credit amount of Rs.81,34,602/- with recovery of interest and penalty of Rs.5,00,000/- relating to the first notice; allowed credit of Rs.16,70,326/-/- and rejected credit of Rs.82,92,361/- with interest and penalty of Rs.5,00,000/- relating to the second notice. Aggrieved by the said orders, the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents, spares and accessories of specified goods irrespective of their classification. 3.5 Further, he has submitted that the items such as carbon steel plates, HR plates, chequered plates, plain plates, angles, channels, joists, MS CTD bars etc are used to properly support and connect the various machineries, which are indispensable for manufacturing of the final product, hence, qualify as components/spares/accessories of the goods falling under Chapter 82, 84, 85 and 90. It is his contention that the user test laid down by the Hon ble Supreme Court in the case CCE, Coimbatore vs. Jawahar Mills Ltd. 2001 (132) ELT3 (SC) and followed in CCE, Jaipur vs. Rajasthan Spinning Weaving Mills Ltd (supra) being satisfied in the present case, therefore, Cenvat Credit is admissible on these items mostly used in the manufacture of storage tank and supporting structures. 3.6 He has also submitted that the ld. Commissioner has denied CENVAT Credit on items at Sl. Nos. 7-9 and 41-44 observing that these items were neither inputs nor capital goods. It is his contention that these items are used for cutting MS plates and lighting/illuminators and spares for wireless transmitters, he has su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (358) ELT 145 (AP) c) CGST, Lucknow vs. DSCL Sugar 2019 (367) ELT 836 (All.) d) M/s Bajaj Hindusthan Limited vs. CCE ST, Meerut-I - 2018-TIOL-415-CESTAT-ALL e) M/s KLJ Plasticizers Ltd vs. CCE ST, Vapi - 2017-TIOL-2574-CESTAT-AHM f) Mundra Ports Special Economic Zone Ltd vs. CCE Cus 2015 (39) STR 726 (Guj.) g) CCE, Jaipur vs. Rajasthan Spinning Weaving Mills Ltd 2010 (255) ELT 481 (SC) h) UOI vs. ACC Ltd 2011 (267) ELT 55 (Chhattisgarh) i) CCE Cus, Visakhapatnam vs. Rashtriya Ispat Nigam Limited 2011 (267) ELT 311 (AP) j) CCE, Hyderabad-I vs. Hyderabad Chemical Products Ltd 2009 (243) ELT 580 (Tri. Bang.) k) Andhra Pradesh Paper Mills Ltd vs. CCE, Visakhapatnam 2009 (240) ELT 555 (Tri. Bang.) l) CCE Cus, Visakhapatnam-II v.s A P P Mills Ltd 2013 (291) ELT 585 (Tri. Bang.) m) SLR Steels Ltd vs. CCE, Bangalore-II 2010 (249) ELT 394 (Tri. Bang.) n) CCE, Bangalore-II vs. SLR Steels Ltd 2012 (280) ELT 176 (Kar.) o) Bannari Amman Sugars Ltd vs. CCE, Mysore 2010 (250) ELT 326 (Kar.) p) Qazi Noorul HHH Petrol Pump vs. Dy. Directr, ESI Corporation 2009 (240) ELT 481 (SC). q) Mylan La ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urat vs Aneri Construction 2012 (286) ELT 639 (Tri. Ahmd.) c) ACC Ltd vs CCE, Chandigarh 2010 (256) ELT 148 (Tri. Del.) d) ABC Engineering Works vs. CCE, Guntur 2010 (20) STR 145 (Tri. Bang.) 4.5 Further, he has submitted that the present matter be decided in accordance with the existing provisions as on the date of availment of credit and not under Cenvat Credit Rules, 2002/2004, since the receipt of the goods was between 1997-2000. 4.6 Further, he has submitted that the appellants had wrongly availed Modvat credit on various goods namely MS CTD bars, TCR steel, rounds, joists, angles, channels, seamless steel tube, parts of structures, paints and varnish, foam, asbestos, ceramic balls, poles, netting and fencing, electric signaling apparatus, flood light lighting, fire fighting equipment, parts of air conditioners, water cooler, series of consumables and spares etc., which both the authorities below considered the eligibility of credit on these items by discussing its usage/utilization in the factory and allowed a total credit of Rs. 19,60,044/- as per the provisions existing at the given point of time. 4.7 He has also submitted that there are items whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o tax matters. In support, he referred to the following judgments: a) Tata Chemicals Ltd vs. CC (Prev.), Jamnagar 2015 (11) SCC 628 b) Krishna Rai vs. Banaras Hindu University 2022 (8) SCC 713 c) Punjab Bone Mills vs. CCE, Chandigarh 2001 (135) ELT 1377 (Tri. Del.) d) CCE, Tiruchirapalli vs. Indian Hume Pipe Co. Ltd vs 2009 (238) ELT 230 (Mad.) e) Hindalco Industries Ltd vs. CCE, Belapur 2014 (308) ELT 472 (Tri. LB) 5. Heard both sides and perused the records. 6. The issue involved in present appeals for determination is: admissibility of CENVAT Credit availed on various items declaring the same as capital goods in March and April 2001 under erstwhile Rule 57Q/57AA of Central Excise Rules, 1944. 7. We find that this is the second round of litigation before this Tribunal. In the first round, the matter was remanded by the Tribunal to the adjudicating authority observing as: 6. After considering the submissions made by both sides, we find that the Learned Commissioner(A) while upholding the Order in Original has not recorded any detailed finding as regards the submissions made by the appellant s before him. We also find that the adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal products means excisable goods manufactured or produced from inputs, except matches; (d) input means all goods, except high speed diesel oil and motor spirit, commonly known as petrol, used in or in relation to the manufacture of final products whether directly or indirectly and whether contained in the final product or not, and includes accessories of the final products cleared along with the final product, goods used as paint, or as packing material, or as fuel, or for generation of electricity or steam used for manufacture of final products or for any other purpose, within the factory of production, and also includes lubricating oils, greases, cutting oils and coolants. Explanation 1. - The high speed diesel oil or motor spirit, commonly known as petrol, shall not be treated as an input for any purpose whatsoever. Explanation 2. - Inputs include goods used in the manufacture of capital goods which are further used in the factory of the manufacturer. 9. In the impugned orders, the ld. Commissioner (Appeals) listed out 83 disputed items in Tabular form at para no. 9 of the impugned order. He has disallowed total credit of Rs.80,02,643/- on certain items ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ser test laid down in Jawahar Mills s case(supra), held that MS channels, steel plates and angles used in fabrication of chimney would fall within the definition of capital goods. This judgment of Hon ble Supreme Court has been followed in a series of judgments by various High Courts and the Tribunal viz. India Cements Ltd and UOI vs. Associated Cement Company Ltd (supra). Their Lordships in Rajasthan Spinning Weaving Mills Ltd s case observed as follows: 12 . Inter alia observing that capital goods can be machines, machinery, plant, equipment, apparatus, tools or appliances if any of these goods is used for producing or processing of any goods or for bringing about any change in the substance for the manufacture of final product, although this view was expressed in the light of the afore-noted definition of capital goods in the said Rule, which is not there in Rule 57Q, as applicable in the instant case, yet the user test evolved in the judgment, which is required to be satisfied to find out whether or not particular goods could be said to be capital goods, would apply on all fours to the facts of the present case, in fact, in para 6 of the said judgment, the court n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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