TMI Blog2015 (10) TMI 1838X X X X Extracts X X X X X X X X Extracts X X X X ..... s etc are used. The matter is, therefore, required to be remanded back to the Adjudicating Authority to ascertain the use of these items and decide the same in view of the law laid down by CESTAT and the Supreme Court in the relied upon cases by both sides. Appellant is at liberty to produce the documents/chartered engineers certificate to the adjudicating authority to the effect that the inputs for which Cenvat Credit is claimed are used only in the maintenance and repair of the capital goods. Needless to say that the Adjudicating Authority shall give an opportunity of personal hearing to the appellant before deciding the case in the remand proceedings. So far as imposition of equivalent penalty upon the appellant is concerned, it is ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of support structures for the capital goods but are used in the repairs of the capital goods as components or as functional attachments. Learned Consultant made the Bench go through the list of such items duly verified by the jurisdictional Superintendent to argue that use of these items are is in the repair of capital goods or these items are used in making of Ladder etc. which are functional necessities of capital goods. It was firmly argued by the Learned Consultant that if the items are used in the repairs of capital goods then the cenvat credit is admissible as per the judgement of Supreme Court in the case of Saraswati Sugar Mills vs CCE Delhi III [2011(270)ELT.465.SC]. He made the Bench go through Para 23 of this order passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law in Para 3.1 and 4 it was upheld that Cenvat Credit with respect to MS Plates, Beams, Angles, Channels etc used for repairs and maintenance of capital goods is admissible as Cenvat Credit. Para 3.4 and 4 of the case law has also given observations that the same items when used for making supporting structure of the capital goods are not eligible for Cenvat Credit. Hon ble apex Court in the case of Saraswati Sugar Mills vs CCE, Delhi iii 2011(270) ELT.465 (SC)], while clarifying the judgement of the Apex Court in the case of CCE vs Rajasthan Spinning And Weaving Mills [2010(255)ELT.481(SC)], made the following observations, in Para 23 24. 23.?Before we conclude, we must further observe that Shri Lakshmikumaran drew our attention to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel generating sets are entitled to avail of MODVAT credit by treating them as capital goods in terms of Rule 57Q of the Central Excise Rules. This Court, applying user test , has arrived at a conclusion that Steel Plates and MS Channels are used in the fabrication of chimney which is an integral part of the diesel generating set. Therefore, the test applied by this Court is whether the items that were at issue were integral part of a machinery. If that test is satisfied, there will not be any difficulty to hold a particular item of the machinery is a component part and therefore, will fall within the ambit of the expression capital goods . 24.In Simbhaoli Sugar Mills Ltd. v. Commissioner of Central Excise, Meerut, 2001 (135) E.L.T. 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tribunal. 5. In view of the above settled proposition of law, items like MS Plates, Beams, Channels, Angles etc., when used in the repair of the capital goods would be eligible for cenvat credit but the same item when used in the making of support structures will not be eligible to Cenvat Credit. On a specific query from the Bench, Learned Consultant submitted that no Chartered Engineer s certificate was produced by the appellant in support of their contention. That such items are only used for maintenance and repairs of their capital goods and not for making supporting structures. Reliance placed by the Learned Consultant on the list of items, duly verified by the jurisdictional Central Excise officers also do not throw any lig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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