TMI Blog2013 (9) TMI 536X X X X Extracts X X X X X X X X Extracts X X X X ..... was only within their knowledge as to how and in what manner these items were put in use - In the adjudication proceedings the appellant despite of the fact that they were given opportunity of hearing did not lead any evidence to indicate as to which items of structural steel plates, and in what quantity were used for fabrication of machinery - The Commissioner had no option but to hold that the appellant failed to discharge onus regarding use of items in question as inputs for manufacture of capital goods - Not only this admittedly the appellants in the ER-1 returns filed by them, did not declare the use of these items in manufacture of capital goods. The M.S. Angles, Channels, Plates, Sections, etc. were claimed to have been used for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... farnagar for, manufacture of sugar and molasses. They have separate Central Excise registrations. During the period from January, 2005 to June, 2005 each of the three appellant units took Cenvat credit in respect of Angles, Channels, Plates, Sections, Beams, Flats, etc. claimed to have been used for fabrication of plant and machinery and supporting structures for various machineries and plant. Cenvat credit availed by Bhilai unit, Thana Bhawan, Muzaffarnagar unit and Bhaisana, Muzaffarnagar unit was Rs. 1,65,69,326/-, Rs. 1,90,52,382/- and Rs. 2,02,96,271/- respectively. The department being of the view that this credit was wrongly taken, as there is no evidence that the items, in question, had been used for manufacture of capital goods for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner and submitted that though the M.S. Angles, Channels, Plates, Sections, etc. are claimed to have been used for fabrication of various items of machinery for use in the factory, no evidence in support of this claim has been produced in spite of ample opportunities having been given to the appellants; that neither the manufacture of any capital goods have been declared in ER-1 Returns nor any specific intimation has been given regarding use of the structural steel items in manufacture of capital goods; that when the appellants have taken Cenvat credit in respect of items like M.S. Angles, Channels, Plates, Section etc. falling under Chapter 72 73 of Central Excise Tariff Act which are not covered under the definition of capi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacture but shall not include cement, angles, channels, CTD or TMT bars, and if the item used for construction of factory shed, building or laying of foundation or making of structures for support of capital goods. 6. By reading of this Explanation it is apparent that if the inputs have gone into manufacture of capital goods, then only they are eligible for Cenvat credit and such capital goods must be put to actual manufacture of final product. Otherwise, also under Cenvat Credit Rules in order to avail Cenvat credit the assessee has to establish that the items in question were actually put to use for manufacture or in relation to manufacture of final product or the capital goods regarding which the assessee seeks to avail Cenvat cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of above discussion we are of the considered view that since the appellant have failed to discharge their onus, the impugned order is correct. Therefore, all the appeals are dismissed. 7. Before parting with this matter we would like to observe that there are a large number of appeals pending in the Tribunal where the point of dispute is similar to the dispute in this case i.e. dispute regarding use of structural steel items of Chapter 72 73 of the Central Excise Tariff - M.S. angles, channels, bars, plates, joists etc. in the manufacture of various items of machinery and parts, components and accessories thereof. Such disputes can be avoided, if there are instructions from the Board requiring the Assessees to specifically inform ..... X X X X Extracts X X X X X X X X Extracts X X X X
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