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2016 (5) TMI 1119 - CESTAT MUMBAI

2016 (5) TMI 1119 - CESTAT MUMBAI - TMI - Entitlement for Cenvat credit - M.S. Angles, M.S. Flat, CTD Bar, M.S. Sheet/Plate - goods used for supporting structure to civil construction work, hence cannot be considered as components, spares and accessories of Capital Goods as per definition of Capital goods specified under Rule 2(a)A of CCR, 2004. Also Cenvat credit was disallowed even for the period prior to amendment made on 7/7/2009 - Held that:- in view of the various judgments, it can be seen .....

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ere in it was held that amendment made on 7/7/2009 in the definition of 'input' cannot be applied retrospectively. For this reason Vandana Global judgment of Larger bench reported in [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)] stands distinguished. As regard the claim of the appellant on CTD bar, I am of the view that CTD bar invariably used for construction purpose, which cannot be allowed therefore the Cenvat credit is disallowed in respect of CTD bar. Hence, except CTD bar, all other steel ma .....

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ise & Customs, Nagpur wherein Ld. Commissioner (Appeals) passed following order:- 12. Respectfully abiding by the decision of the Larger Bench of the Honble CESTAT mentioned above and the facts and circumstances mentioned above, I uphold the Order-in-Original No. 19/2009/DEM/Dn. II dated 30.6.2009 passed by the Dy. Commissioner, Customs & Central Excise, Division-II, Nagpur with respect to the confirmation of the demand as well as the interest thereon. However, I set aside the penalty i .....

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l construction work, hence cannot be considered as a components, spares and accessories of Capital Goods specified at Clause (i) and (ii) of the definition of the Capital goods specified under Rule 2(a)A of CCR, 2004. Ld. Commissioner also relied upon the Larger Bench judgment in case of Vandana Global Vs. CCE [2010(253) ELT 440] wherein Cenvat credit was disallowed even for the period prior to amendment made on 7/7/2009. Aggrieved by the impugned order, the appellant is before me. 3. Shri. Suni .....

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ails of use of material has been submitted before the Adjudicating authority as well as before first appellate authority however no objection was raised on this submission therefore as regard use of material, it is not in dispute. The lower authority held that the even the goods in question were used for aforesaid capital goods but all these capital goods are embedded to earth therefore it is immovable for this reason also credit is not admissible. In this regard he submits that Cooling bed is m .....

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brication of the said items is input and hence credit should be allowed. In support of his submission, he placed reliance on the various following judgments: (a) Sirpur Paper Mills Ltd Vs. Collector of Central Excise, Hyderabad[1998(97) ELT 3(S.C.)] (b) Commr. of C. Ex. Ahmedabad Vs. Solid & Correct Engineering Works[2010(252) ELT 481(S.C.)] (c) Euro Containers Vs. Commissioner of C. Ex. Chandigarh-I[2015(327) ELT 303 (Tri. Del.)] (d) Mastech Technologies Pvt Ltd Vs. Commissioner of C. Ex. J .....

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ital goods wherein, the goods in question said to have been used are immovable. He submits that all the machines are attached to the earth and without such attachments machines cannot function. All the capital goods are immovable in nature therefore credit cannot be allowed on the input used in the goods which are immovable. In support of his submission, he placed reliance on the judgments of Honble High Court in case of Bharati Airtel Ltd Vs. Commissioner of Central Excise, Pune-III[2014(35) S .....

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n the ground that these capital goods are embedded to the earth and immovable. It is also found by the lower authority that the steel material on which credit was availed are not admissible input, in view of the judgment of Vandana Global. I find that in case of Vandana Global though the larger bench has held that the steel material used for the supporting structure cannot be allowed as a input or capital goods however in the same judgment it was held that if the same material used for fabricati .....

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bolt arrangement. It is not permanently fixed. It is on the ground level, clearly visible and also removable (Movable). Material used are MS Angle, Beams, Channels etc. Crane Gantry- The Gantry is at a height of about 7 meters (30 feets) above the ground level. The gantry is rested on the steel Column by way of removable arrangement. Further the rail over which the wheel of the crane is moving is again attached to the gantry by way of clit arrangement. The entire gantry is removable it is not .....

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rotect it from the environment and also to stop the inside heat of the furnace to come out and also to protect the persons working nearby. The MS plat is only a cover it is integral part of the furnace at the same time it is not embedded in the earth. It is removable. Material used are MS Angle, MS Beam, MS Channels, MS Plates. Rail- The rails are on the surface and over the rails the mill stands are attached. It is a movable locking arrangement like male female. Materail used are MS Rail. From .....

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ds, the goods used for fabrication has been allowed as input in the following judgments: Euro Containers (supra) 6. The only point of dispute in this case is as to whether the steel items, in question are eligible for Cenvat credit. Their use in fabrication and installation of Gantry for EOT Crane and conveyor for handling of material is not disputed. I find that the Tribunal in the case of Mastech Technologies Pvt. Ltd. v. CCE, Jaipur-I (supra), has held that the steel items used for fabricatio .....

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or manufacture of final products, and hence the same would be eligible for Cenvat credit. Since, without Gantry, the EOT crane cannot function the same has to be treated as part of the EOT crane and, hence, in my view, the steel items used for production of goods for manufacture of final products would be eligible for Cenvat credit. Similarly, the steel items used for fabrication of conveyor system for handling of material would also be eligible for Cenvat credit as input. The impugned order is, .....

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Tribunal in the case of CCE, Ambuja Cement Eastern Ltd. (supra) cited by the ld. Counsel for the appellant has held that M.S. Rails used for conveyor systems are its accessories, and hence entitled to Cenvat credit as capital goods. Therefore, steel items used for fabrication of gantry rails on which EOT cranes mines would be eligible for Cenvat credit as inputs, as the definition of inputs also includes the items used for fabrication of capital goods used in the factory. Jodhpur Alloys Pvt Ltd .....

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Cenvat Credit Rules. In my view since it is the cooling bed on which the rolling takes place, the same has to be treated as a component of the rolling mill, even though for installation of the rolling mill, the cooling bed has to be permanently fixed to the earth. Looked at from this angle, the steel items in question, which admittedly have been used in fabrication of the cooling bed, have to be treated as input having been used in fabrication of the components of rolling mills, which are covere .....

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