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2016 (11) TMI 470 - AT - Central ExciseSetting-up a new cement plant adjacent to existing plant and machinery - CENVAT credit - steel items used in the set-up activities - whether the denial of CENVAT credit on the ground that these steel items were used in the fabrication of supporting structures and also in creation of immovable assets and as such, is justified? - Held that: - It has been held by the Tribunal consistently that the steel items when they were used in fabrication of capital goods and their accessories inside the manufacturing premises are eligible for credit. The principle of user test evolved by the Hon’ble Supreme Court in Rajasthan Spinning and Weaving Mills [2010 (7) TMI 12 - SUPREME COURT OF INDIA] has been applied in this regard. A reference can be made to the latest decision of the Tribunal in Singhal Enterprises [2016 (9) TMI 682 - CESTAT NEW DELHI] where it was held that 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 . It is not categorically established in the present case that all the steel items are used in creation of immovable assets only. On the contrary, the appellants submitted detailed certificate by a Chartered Engineer. We have perused the same. The said certificate records that upon physical examination, it was certified that the steel items have been used for fabrication of various equipments/accessories in various locations of the plant - The categorical assertion of facts by the appellant as supported by the Chartered Engineer Certificate should have been rebutted with evidences of such nature before making summary conclusion on the basis of the presumption. We find the original order is not legally sustainable. Denail of CCR not sustained - appeal allowed - decided in favor of appellant.
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