TMI Blog2010 (7) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... 3/2006 - 519/2010-EX(PB) - Dated:- 20-7-2010 - Justice R.M.S. Khandeparkar, President and Shri Rakesh Kumar, Member (T) REPRESENTED BY : Shri Nitin Anand, DR, for the Appellant. [Order per : Justice R.M.S. Khandeparkar, President (Oral)]. - Heard the learned DR for the appellants. None present for the respondent though served. 2. We have perused the records with the help of learned DR. 3. The appellants challenge the order passed by the Commissioner (Appeals) on 26-10-2005 whereby the order passed by the adjudicating authority disallowed the credit in relation to certain items has been modified in favour of the assessee. The penalty imposed has also been set aside .4. The adjudicating authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore credit cannot be denied. 6. The adjudicating authority while observing that the main issue which was required to be decided in the matter was whether the credit on the items in question was sought to be availed were used by the respondents in their factory for structural work held that the final products which emerged out of the utilization of the impugned goods were only structural items falling under Chapter 73 of the Central Excise Tariff Act, 1985 and that such structural items having fabricated at the site became immovable property. While disallowing the Cenvat credit for the said items the order dated 15-7-2005 came to be passed. 7. In appeal against the said order by the respondents herein, the Commissioner (Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it can be allowed in respect of such goods which go into fabrication of such structures and plant ruled that held as under :- "47. It has also been argued that the impugned goods which are used for laying foundation and building structural support should be granted credit ignoring the fact that at the intermediary stage non-excisable goods in the nature of immovable property attached to earth come into being. Reliance is placed on several decisions where credit has been allowed even though intermediate goods produced are exempt from payment of duty. In this connection we note that as the learned Jt. CDR has rightly submitted, the erstwhile Rules 57D and 57R of the Central Excise Rules, 1944 provided for non-denial of the credit if any in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Supreme Court on the issue, which is no longer res integra. (b) Goods like cement and steel items used for laying 'foundation' and for building 'supporting structures' cannot be treated either as inputs for capital goods or as inputs in relation to the final products and therefore, no credit of duty paid on the same can be allowed under the Cenvat Credit Rules for the impugned period". 11. As already observed above the authorities below have found that the goods in question were used for manufacture of structures which either supported the machinery or the enclosures having machinery in the factory, and the manner in which they are used does not disclose the same to be capital goods entitled to avail credit under the Cenvat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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