TMI Blog2016 (9) TMI 1097X X X X Extracts X X X X X X X X Extracts X X X X ..... in the manufacture of capital goods as none of the items, as described above, arising after fabrication, can be considered as accessories of the capital goods. Further, they become immovable upon fabrication. We find both these arguments as un-sustainable. Much emphasis has been made on the requirement and necessity of emergence of excisable items after fabrication using the impugned goods. We do not find any such requirement specifically mentioned in the definition of either in the inputs or capital goods under Cenvat Credit Rules. In the present case, the lower authorities have not categorically established that upon fabrication, an immovable civil structure is emerged. Fabrication of structural as an accessory for necessary operation of capital machinery cannot be considered as creation of immovable property. It is relevant to note the Hon’ble Supreme Court’s observation in Rajasthan Spg. & Wvg. Mills Ltd. [2010 (7) TMI 12 - SUPREME COURT OF INDIA]. The Hon’ble Apex Court allowed the credit on steel plates and M.S. channels used in the fabrication of chimney applying user test . In other words, the usage of a particular item in the appellant s premises will determine the cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which are further used in the factory of manufacture. Also, the definition of capital goods included components, spares and accessories of goods falling under Chapter 82,84 and 85 and therefore, if the inputs are used in the manufacture of components, spares and accessories of specified capital goods, such inputs shall be treated as used in the manufacture of capital goods. For capital goods, they should be used in the factory of manufacture of final products for being entitled to credit. ii) The cenvat credit is available on these items as inputs as they were used in the manufacture of capital goods i.e. parts of specified capital goods which were further used in the factory. Alternatively, credit will be admissible as capital goods under the category of components, spares and accessories of specified capital goods. iii) To install ducts and cyclones and to make them functional they are mounted/erected on structures to support them and without these support, machinery cannot be installed. iv) Attending platforms are fabricated as per requirement in the manufacturing process and they are attached to cyclones or ducts and are parts of such goods. Since the machinery is hu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit is being claimed must be used for manufacture of capital goods and not for structures like foundations or supporting structures or permanently embedded plant, which are not the goods . 5.1 Further, ld. AR, Shri Yogesh Agarwal appearing for the Revenue submitted as follows:- * The present definition of capital goods is covered in Rule 2 (a) of CCR, 2007 which is similar to the definition existing since 23.7.96 except the coverage of specified goods has been broadened steadily. It covers goods falling in Chapter 85,86, 90, 82, 6805, 6804, 860692 (wagons);csa(comp, spare parts and accessories of these); pollution control equipment and their parts; moulds, dies, jigs, fixtures, refractories; tubes /pipes/their fittings; storage tank; motor vehicles and their chassis including dumpers and tippers. (from 1.4.2012). 5.2 In support, Ld. AR also cited the decision of the Hon ble Allahabad High Court in the case of Daya Sagar Vs. CCE 2015 (316) ELT 394 (HC). 6. We have carefully considered all the facts on record and submissions of both the sides along with the case laws cited. 7. We find that this is a second round of litigation before us. In the remand order dated 29 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation using the impugned goods. We do not find any such requirement specifically mentioned in the definition of either in the inputs or capital goods under Cenvat Credit Rules. 7.3 Admittedly, various capital goods and machinery for the plants are bought individually, wherever they are used they are identifiable machinery under due classification and on payment of duty. However, to have a manufacturing facility in such a complex operation, all these machineries and their accessories are to be integrated properly. Hence, various other items are fabricated in the appellant s unit also. Now, we are dealing with some such fabrication, which are done inside the appellant s unit. We find that various capital machineries are integrated for the manufacture of cement. Certain structures like standing platforms, ladders, support system for material transporting ducts are essential parts of these capital goods. Admittedly, in a cement plant, the capital goods are integrated and fixed. When various additional structures are added for functional and operational purposes, it cannot be questioned on the ground that such fabricated structures are not movable after such fabrication. In other wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al goods namely Dry Process Cement Manufacturing Plant, which falls under Chapter 84, as mentioned in Serial No. (i) of Rules 2(a)(A). Thus, the items in question are covered in serial No. (iii) of Rules 2(a)(A) of the Rules, C.B.E. C. has clarified that all parts, components, accessories which are to be used with capital goods in serial (i) and (ii) of Rules 2(a)(A) and classifiable under any chapter heading are eligible for availment of Cenvat credit. A plain reading of serial (iii) cannot lead to a different conclusion either. 8. After considering the use of the goods in question, in our considered view, the present case is covered by the decision of the Hon ble Madras High Court in appellant s own case as referred above. We have also noticed that the Hon ble Supreme Court in the case of Rajasthan Spinning and Weaving Mills Ltd. (supra) as relied upon the Hon ble High Court in the appellant s own case, allowed Modvat credit on MS channels, steel plants etc. as capital goods used for erection of chimney for diesel generating set. The findings of the Commissioner that these are structures fixed to earth with concrete foundations and are immovable appears to be beyond the sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ti Sugar Mills v. Commissioner of C.Ex., Delhi-III) is concerned, we do not think that the said decision would be of any assistance to the Revenue, considering the factual finding by the Tribunal therein in the decided case that the machineries purchased by the assessee were machineries themselves. Thus, after referring to the decision reported in 2010 (255) E.L.T. 481 (Commissioner of Central Excise, Jaipur v. Rajasthan Spinning Weaving Mills Ltd.), the Apex Court held that in view of the findings rendered by the Tribunal that the machineries were complete and having regard to the meaning of the expression components/ parts , with reference to the particular industry in question, the Apex Court rejected the appeal filed by the assessee. 11. Thus going by the factual finding, which are distinguishable from the facts found by the authorities below in the case on hand, we have no hesitation in rejecting the Revenue s appeal, thereby confirming the order of the Tribunal. 12. Learned standing counsel appearing for the Revenue pointed out that the Tribunal had merely passed a cryptic order by referring to the earlier decisions. We do not think that this would in any manner p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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