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2017 (1) TMI 1180 - AT - Central ExciseCENVAT credit - MS items - denial on two grounds, firstly, that the MS items do not fall within the definition of capital goods and secondly, for the reason that the capital goods when fixed to the earth by support structures fabricated by MS items become immovable property - Held that: - The credit seems to be disallowed stating the reason that the appellant has not produced issue slips, work orders etc. for fabrication of capital goods. When the appellant has disclosed the detail in each of the ER1 returns, the Department was under obligation to scrutinise and call for information within the normal period. The Department has not been able to identify or substantiate with any evidence that the appellant has used the MS items for fabrication of foundations / civil works / sheds. The reason for disallowing credit is that the support structures when embedded to the earth will become immovable property and therefore not eligible for credit. In a recent decision in the case of Ultra Tech Ltd. Vs. CCE Indore [2016 (9) TMI 1097 - CESTAT NEW DELHI], the Tribunal has made a detailed discussion that capital goods when fixed to the earth using support structures cannot be considered to be immovable property and that credit cannot be disallowed - there is no evidence to show that the appellant has used the MS items for fabrication of civil structures or laying of foundations. The MS items having been used for fabrication of capital goods which fall within the definition of capital goods viz. Pollution control equipment, energy tank, chimney etc. and also parts of capital goods. Credit allowed - appeal allowed - decided in favor of appellant.
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