TMI Blog2009 (2) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Beams/Joists used for structural work. - Chartered Engineer certified that without these props and without such usage, the machinery cannot function in the factory. – Credit not deniable – revenue’s appeal is rejected - E/751/2008 - 105/2009 - Dated:- 5-2-2009 - S/Shri T.K. Jayaraman, Member (T) and M.V. Ravindran, Member (J) Shri V.R. Gyaneshwar, JDR, for the Appellant. Shri V.J. Sankaram, Advocate, for the Respondent. [Order per: M.V. Ravindran, Member (J)]. - This appeal is directed against the Order-in-Appeal No. 29/2008 (H-I)C.E., dated 4-7-2008. 2. The relevant facts that arise for consideration are the respondents herein are engaged in the manufacture of chemicals falling under Chapter 38 of the Central Excise Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit irregularly on MS Plates, MS Channels, MS Angles and MS Beams/joists. The usage of the said items was certified by the Chartered Engineer in his certificate dated 2-2-2007 wherein he has, inter alia, stated that the same are used either for positioning and/or thus using them componentially or structurally for the machines and without which machinery cannot function in the factory. (3) There is no doubt that these items are essentially used in the capital goods for positioning fixing etc. But they are used with capital goods and accordingly, they cannot be treated as inputs for manufactured items. (4) Rule 2 of Cenvat Credit Rules, 2002/2004 defines the capital goods exhaustively and the said goods on which the assessees had avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L.T. 122 (Tri.-Bang.) (g) M/s. Malavika Steel Ltd. v. CCE, Allahabad - 1998 (97) E.L.T. 530 (Tri.-Del.) (h) M/s. DSM Sugar v. CCE, Meerut-II - 2007 (220) E.L.T. 71 (Tri.-Del.) (i) M/s. Usha Ispat Ltd. v. CCE, Pune - 2000 (125) E.L.T. 1184 (Tri.-Mumbai) (j) M/s. Rosa Sugar Works v. CCE, Kanpur - 1999 (144) E.L.T. 950 (Tri.-Del.) (7) Hence, the assessee has contravened the Cenvat Credit Rules, 2002/2004 with an intention to evade payment of duty by a availing undue advantage and due to the suppression of the facts which could be found only on verification the extended period of limitation under proviso to Section 11A(1) is invocable. 4. The learned Counsel on the other hand, would submit that the Revenue has not disputed that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 007, certified as under: "Certified that I have inspected the factory of M/s. Hyderabad Chemicals Products Ltd. Pashamylaram, Medak District and examined the machinery in the plant for the purpose of finding out how the MS Plates, MS Angles, MS Beams, MS Joists, MS Channels and HRSS Plates are used for the machinery. I noticed that these are used either for positioning and or thus using them componentially or structurally for those machines. I also noticed that without these props and without such usage, the machinery cannot function in the factory. Therefore, I consider that these are essentially required for working of the machinery installed in the factory". 5.1 It can be seen from the above facts, that it is undisputed that the item ..... X X X X Extracts X X X X X X X X Extracts X X X X
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