TMI Blog2013 (8) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... ision to deny CENVAT credit cannot be faulted – Decided against the Assessee. Stay application – Waiver of pre-deposit – Held that:- Entire demand being within the normal period of limitation, and there being no plea of financial hardships, the appellant directed to pre-deposit an amount of Rs.33,00,000/- (Rupees thirty three lakhs only) being the CENVAT credit prima facie deniable to them. They shall pre-deposit this amount within six weeks – Decided against the Assessee. - Appeal No.: E/25173/2013 - - - Dated:- 8-5-2013 - Mr. P.G. Chacko and Mr. B.S.V. Murthy, JJ. For the Appellant: Mr. Joseph Dominic, Consultant For the Respondent: Shri R.K. Singla, Commissioner (AR) ORDER Per: P. G. Chacko; This application fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Saraswati Sugar Mills vs. Commissioner : 2011 (270) E.L.T. 465 (S.C.) to take the above view and deny CENVAT credit to the appellant. 2. The learned consultant for the appellant submits that the supporting structure was necessary for the raw mill, silo and packing plant to function and hence should be considered as component/part/accessory. In this connection, he relies on the Hon ble Supreme Court s judgment in Commissioner vs. Rajasthan Spinning and Weaving Mills: 2010 (255) E.L.T. 481 (S.C.) wherein a chimney fabricated out of various steel items was held to be an integral part of a DG set and accordingly considered as capital goods for the purpose of MODVAT credit under the erstwhile Rule 57Q of the Central Excise Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al components of pre-heater, tower on which duty had been paid by its manufacturer under Chapter 84 of the Central Excise Tariff Schedule, were brought to the appellants factory and assembled and installed with a structural support. It is submitted that, upon such installation, it amounted to be a complete capital goods and no part of it was identifiable as structural support. In this manner, it is argued that the structural support should also be considered as an integral part of the capital goods viz. pre-heater tower. 2.1 The learned consultant has also referred to the 2nd Explanation to the definition of input given under Rule 2(k) of the CCR, 2004. He submits that this Explanation was amended with effect from 7.7.2009 so as to exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dment to the 2nd Explanation to the definition of input under Rule 2(k) ibid. It is further pointed out that the amendment was held to be retrospective by the larger bench in the case of Vandana Global Ltd. and therefore, in any case, the appellant cannot claim CENVAT credit on the steel items in question. 4. We have given careful consideration to the submissions. The adjudicating authority appears to have rightly relied on the apex court s judgment in Saraswati Sugar Mills case wherein it was clearly held that a structural support to any capital goods could not be considered as a part or component of such capital goods and therefore any steel items used in the fabrication of the structural support would not get covered by Clause (5) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se pre-fabricated steel structures were assembled into what is called pre-heater tower in the appellant s factory. Prima facie, the steel structures falling under Chapter 84 of the Tariff Schedule are squarely covered by the definition of capital goods under Rule 2(a)(A) and hence the appellant is entitled to a major part of the CENVAT credit which was sought to be denied by the last two show-cause notices. 4.2 The entire demand being within the normal period of limitation, and there being no plea of financial hardships, the appellant can be directed to pre-deposit an amount of Rs.33,00,000/- (Rupees thirty three lakhs only) being the CENVAT credit prima facie deniable to them. They shall pre-deposit this amount within six weeks and rep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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