TMI Blog2015 (8) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... e. - Appeal No. E/4131/2012-EX(SM) - FINAL ORDER NO. 52102/2015-EX(SM) - Dated:- 2-7-2015 - Shri Ashok Jindal, Member (Judicial), J. For the Petitioner : Shri Naveen Mullick, Advocate For the Respondent : Shri M. S. Negi, DR ORDER Per Ashok Jindal: The facts leading to filing to this appeal are in brief as under:- 1.1 The appellant are manufacturer of Aluminium Flake/Powder, Atomised Aluminium Powder and Aluminium Paste chargeable to Central Excise Duty under various headings of the Central Excise Tariff Act, 1985. They availed Cenvat Credit of Excise Duty paid on inputs and capital goods. The period of dispute is from Oct.2007 to April 2009 as is clear from the Annexure to the Show Cause Notice. During this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een Mullick, learned counsel for the appellant, pleaded that the steel items, in question, have been used for fabrication of tanks which are capital goods, that hence the same steel items would be eligible for Cenvat Credit as inputs, that just because the tanks being installed become fixed to earth, Cenvat Credit in respect of steel used for fabrication of tanks cannot be denied, that in any case, the Show Cause Notice dt. 13.05.10 seeking recovery on Cenvat Credit availed for the period from Oct. 07 to April 09 is time barred, as from para 2 of the Show Cause Notice itself, it is clear that the appellant had declared the availment of Cenvat Credit on the steel items for the fabrication of the parts of the capital goods in the ER-1 Return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner (Appeals) has correctly upheld the denial of Cenvat Credit. 5. I have considered the submissions from both the sides and perused the records. The appellants claim is that they are eligible for Cenvat Credit in respect of steel items, in question, as the same have been used by them for fabrication on capital goods/parts of capital goods namely tanks and accordingly the steel items would have to be treated as inputs used in the manufacture of capital goods and would be eligible for Cenvat Credit. It is also seen that para 2 of the Show Cause Notice itself states that on scrutiny of the said returns filed by the appellant, it was revealed that they have taken Cenvat Credit on the structural steel items like Angle, Channel, Bea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been taken Cenvat Credit cannot be treated as input as said items do not appear to be covered within the ambit of definition of inputs which as per Rule 2 k of the Cenvat Credit Rules reads as under, inputs means: (i) all goods, except light diesel oil, high speed diesel oil and motor spirit, commonly known as petrol, used in or in relation to the manufacture of final products whether directly or indirectly and whether contained in the final product or not and includes lubricating oils, greases, cutting oils, coolants, accessories of the final products cleared along with the final products, goods used as paint, or as a packing material, or as fuel, or for generation of electricity or steam used in or in relation to manufacture of fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice. 6. Since in this case the availment of Cenvat Credit in respect of Steel items, in question, and their use has been declared for ER-1 Return, it was the responsibility of Jurisdictional Assistant Officer to immediate verify their claim and as such it cannot be said that the appellant did not disclose the availment of Cenvat Credit in respect of the inputs in question of their use. Therefore, the appellant have a case in their favour on limitation and have disclosed the usage of the items in question for fabrication of storage tank. 7. In these circumstances, I hold that the appellant has taken Cenvat Credit on the items in question correctly, therefore, the demands against the appellant are not sustainable. Accordingly, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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