TMI Blog2013 (9) TMI 615X X X X Extracts X X X X X X X X Extracts X X X X ..... can be described as component parts. Iron and steel structures would not go into the composition of vacuum pans, crystallizers etc. If an article is an element in the composition of another article made out of it, such an article may be described as a component of another article – Also, the case of Rajasthan Spinning & Weaving Mills [2010 (7) TMI 12 - SUPREME COURT OF INDIA] and held in favour of the assessee on a similar issue vide Final Order No.616/2011 ibid will not be applicable as the apex court’s decision dt. 02/08/2011 in Saraswati Sugar Mills case [2011 (8) TMI 4 - SUPREME COURT OF INDIA] was not brought to the notice of this Bench when the said Final Order was passed on 23/09/2011 [2013 (7) TMI 494 - CESTAT BANGALORE] – Appeal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dingly holding the party to be eligible for CENVAT credit. The present appeal of the Department is directed against the appellate Commissioner s decision. 3. On a perusal of the records, I find that it is not in dispute that the structural items in question were classifiable under Chapter 72 or 73 of the 1 st Schedule to the Central Excise Tariff Act and hence not capital goods falling under clause (i) of the definition of capital goods given under Rule 2(a) of the CCR. It is also not in dispute that the structural items were used for fabricating supporting structures which were, in turn, used for installation of certain capital goods in the factory. The respondent claimed that the structural items so-used for the fabrication of supporti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision in Vandana Global Ltd. Vs. CCE, Raipur [2010(253) ELT 440 (Tri. LB)] and the Hon ble Supreme Court s judgment in Saraswati Sugar Mills Vs. CCE, Delhi-III [2011(270) ELT 465 (SC)], the learned Additional Commissioner (AR) has argued that, as the supporting structures for the fabrication of which the structural items were used cannot be considered to be components/spares/accessories of any machinery, they cannot be held to be capital goods as defined under Rule 2(a) of the CCR. He has also referred to Explanation 2 to the definition of input under Rule 2(k) and has submitted that, even if it is assumed that the supporting structures fabricated from the structural items are capital goods, such structural items cannot qualify to be in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clusion arrived at by the Commissioner(Appeals) is not supported by any finding. The appellate authority held that the structural items in question were inputs as defined under Rule 2(k) of the CCR. It did so after a fairly elaborate discussion on whether the structural items could be considered as capital goods falling under Rule 2(a). Indeed, numerous decisions, wherein similar structural items were held to be capital goods, were also referred to by the appellate authority. Thus, there is a clear mismatch between the elaborate discussion and the one-line conclusion in the impugned order. 8. This apart, the question debated before me is whether the structural materials such as plates, beams, angles, channels etc. which were admittedly us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the definition of capital goods (as tubes and pipes and storage tank etc. have been specifically listed), the question of treating cement and steel items as inputs for capital goods cannot arise. Hence Explanation 2 to Rule 2(k) cannot be held to cover cement and steel items used for laying foundation and for building structural support even during the period prior to the 2009 amendment. 9. In the case of Saraswati Sugar Mills (supra), the substantive issue considered by the apex court is whether the assessee could claim the benefit of Notification No.67/95-CE dt. 16/03/1995 in respect of structural items such as steel sheets, angles, nuts and bolts etc. which were claimed to be capital goods as defined under Rule 57Q of the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Vandana Global case. 11. It is true that, in an earlier similar case of the same assessee, this Bench followed Rajasthan Spinning Weaving Mills (supra) and held in favour of the assessee on a similar issue vide Final Order No.616/2011 ibid. The apex court s decision dt. 02/08/2011 in Saraswati Sugar Mills case was not brought to the notice of this Bench when the said Final Order was passed on 23/09/2011. Today, the case of the appellant is fully supported by the apex court s ruling in Saraswati Sugar Mills (supra). I am not impressed with the submission of the learned counsel that the said decision of the apex court cannot be followed in the instant case inasmuch as the apex court was dealing with an issue pertaining to exemption not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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