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TMI Blog2013 (5) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Commissioner confirmed the demand of CENVAT of Rs.53,23,756/- under proviso to Section 11A(1) of the Central Excise Act, 1944 read with Rule 14 of the said Rules, 2004 along with interest under Section 11AB of the Act, 1944 read with Rule 14 of the said Rules 2004 and imposed penalty of equal amount of tax under Rule 15 of the said Rules, 2004. 2. The learned counsel for the appellant submits that these items were used as spares, components and accessories for erection of various capital goods, viz. new additional electrostatic precipitator for raw mill project, additional fly ash handling system, MMD crusher etc. which are integral part of Dry Process Cement Manufacturing Plant and covered under Rule 2(a)(A)(iii) of the said Rules, 2004. He further submits that the adjudicating authority denied the credit on the ground that these are structures fixed to the earth with concrete foundations and immovable, which agreement is beyond the scope of show-cause notice. He also submits that in the appellants own case, on these items, for an earlier period, this Tribunal allowed the credit, which was upheld by the Hon'ble Madras High Court as under:- (a) CCE Vs. India Cements Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grinding wheels and the like, and parts thereof falling under Heading 6804 of the First Schedule to the Excise Tariff Act; (ii) pollution control equipment; (iii) components, spares and accessories of the goods specified at (i) and (ii) (iv) moulds and dies, jigs and fixtures; (v) refractories and refractory materials; (vi) tubes and pipes and fittings thereof; and (vii) storage tank, Used (1) in the factory of the manufacturer of the final products, but does not include any equipment or appliance used in an office; or (2) for providing output service. 4.1 It is well settled that to decide the eligibility of CENVAT credit on capital goods it would be appropriate to examine the use of the goods in question in the manufacture of the final product, which is known as user test. The use of the items in question has been stated in the show-cause notice as under:- The assessees are availing CENVAT credit on capital goods used in the erection of various capital goods, viz. new additional ESP (Electrostatic Precipitator) for raw mill project, additional fly ash handling system, MMD Crusher etc. and utilizing the credit for payment of duty on clearance of excisable goods from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant portion of judgment dated 13.12.2012 (supra) is reproduced below:- 8. Even though learned standing counsel appearing for the Revenue submitted that the judgment in the assessee's own case reported in AIT-2011-358-HC (the Commissioner of Central Excise V. M/s. India Cements Limited) had been appealed against, as of today, there are no details, in any event, the fact herein is that the Revenue does not controvert the facts found by the Assistant Commissioner that the impugned goods were used for fabrication of structurals to support various machines like crusher, kiln, hoppers, pre-heaters, conveyor system etc. and that without these structurals, the machinery could not be erected and would not function. 9. In the decision reported in AIT-2011-358-HC (The Commissioner of Central Excise V. M/s. The India Cements Limited), pointing out to Rule 57Q and the interpretation placed by the Apex Court in the decision reported in 2010 (255) ELT 481 (Commissioner of Central Excise, Jaipur V. Rajasthan Spinning & Weaving Mills Ltd.) and in particular paragraph Nos. 12 and 13, wherein the Apex Court had applied the user test by following the Jawahar Mills case, this court held that st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital goods namely Dry Process Cement Manufacturing Plant, which falls under Chapter 84, as mentioned in Serial No. (i) of Rules 2(a)(A). Thus, the items in question are covered in serial No. (iii) of Rules 2(a)(A) of the Rules, CBEC has clarified that all parts, components, accessories which are to be used with capital goods in serial (i) and (ii) of Rules 2(a)(A) and classifiable under any chapter heading are eligible for availment of CENVAT credit. A plain reading of serial (iii) cannot lead to a different conclusion either. 8. After considering the use of the goods in question, in our considered view, the present case is covered by the decision of the Hon'ble Madras High Court in appellant's own case as referred above. We have also noticed that the Hon'ble Supreme Court in the case of Rajasthan Spinning and Weaving Mills Ltd. (supra) as relied upon the Hon'ble High Court in the appellant's own case, allowed MODVAT credit on MS channels, steel plants etc. as capital goods used for erection of chimney for diesel generating set. The findings of the Commissioner that these are structures fixed to earth with concrete foundations and are immovable appears to be beyond the scope of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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