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2013 (9) TMI 460 - AT - Central ExciseDenial of CENVAT Credit on Capital Goods – Rule 2(a)(A) of CENVAT Credit Rules, 2004 - stay - CENVAT credit on numerous steel items such as M.S. Pipes, Chains, Plates, Flats, Angles, Channels, Sheets, Rods & Beams, etc - Held that:- There was glaring inconsistency in the stand taken by the appellant before the adjudicating authority and before us - In any case, the aforesaid averments made by the appellant in their first reply to the show-cause notice were never retracted - Such averments were crucial in determination of a factual question as to whether the steel items were used in a manner which could qualify those items to be ‘capital goods’ in terms of clause (iii) given under Rule 2(a)(A) - The submission emphatically made by the appellant was that none of the steel items in question was used to fabricate supporting structures - This argument was diametrically opposed to the contention raised by his client before the adjudicating authority in the first reply to the show-cause notice - Prima facie, this conduct of the party is self-defeating - The appellant had specified the Tariff classification of the steel items - Some of the items were classified under Chapter 84 and some of them under Chapter 85 and others under Chapters 72 & 73 - The plea of bona fide belief was also believable - It was not in dispute that there were conflicting decisions on the MODVATability / CENVATability of the steel items during the earlier part of the period of dispute. Relying upon Vandana Global Ltd. Vs. Commissioner of Central Excise, Raipur [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB) ] the appellant in their first reply to the show-cause notice and, consequently, CENVAT credit cannot be claimed by them on the steel items in question under Rule 2(a)(A) - The decision of the apex court in Saraswathi Sugar Mills vs. Commissioner of C. Ex., Delhi-III [2011 (8) TMI 4 - SUPREME COURT OF INDIA ] was to the effect that a supporting structure for any capital goods cannot be considered as component or part of that capital goods and hence would not qualify to be ‘capital goods’ in terms of clause (5) of the definition of ‘capital goods’ under Rule 57Q (1) of the erstwhile Central Excise Rules, 1944 - Clause (iii) of the definition of ‘capital goods’ under the CENVAT Credit Rules is pari materia to clause (5). Waiver of Pre deposit - The appellant should pre-deposit the entire amount of CENVAT credit denied for the normal period – balance of dues i.e interest and penalty waived.
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