TMI Blog2016 (10) TMI 615X X X X Extracts X X X X X X X X Extracts X X X X ..... brication of capital goods and their accessories inside the manufacturer premises are eligible for credit by applying user test - CENVAT credit allowed - appeal allowed - decided in favor of appellant. - Excise Appeal No. 1754 of 2009 - Final Order No. 53775/ 2016 - Dated:- 27-9-2016 - Dr. Satish Chandra, President And Shri B. Ravichandran, Member ( Technical ) Sh. P. K. Sahu and Sh. Prashant Shukla, Advocates for the appellant Ms. Neha Garg, AR for the Respondent ORDER Per B. Ravichandran The appeal is against order dated 24.03.2009 of Commissioner of Central Excise, Raipur. The issue involved in the present appeal is the eligibility of appellant for availing cenvat credit of duty paid on various steel items like T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and machinery like raw mill, conveyor system, packing machine etc. Another set of steel items were used in expansion project of the appellant unit. The emerging items after usage of these steel items were raw mill house, coal mill house, preheater tower, rotary kiln, clinker cooler etc. The original authority held that various steel items on which cenvat credit has been availed were used for construction of foundation and super structure of huge plant and machinery cannot be considered as excisable goods as such structure are attached to earth and hence not marketable. 3. We have examined the impugned order carefully. The original authority gave great emphasis to the question of excisability of emerging structure as capital goods. The fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be allowed credit. 5. The appellant relied on various decided cases in support of their claim by making the following submission in this regard: (i) In Commissioner vs. Rajasthan Spinning Weaving Mills Ltd. 2010 (255) ELT 481 (SC), the Hon ble Supreme Court has held that steel plates and MS channels used in the fabrication of chimney would fall within the ambit of capital goods . The Hon ble Madras High Court in India Cements Ltd. vs. CESTAT, Chennai 2015 (321) ELT 209 (Mad.) has held that MS plates, angles, channels etc. used in the erection of various machineries such as crusher, kiln, hoopers etc. can be considered as eligible for cenvat credit as component of capital goods. Similarly, Associated Cement Company Ltd. 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... truction of factory shed, building or laying of foundation or making of structure for support of capital goods from the meaning of input . This amendment in definition establishes that these items were included in the definition of input earlier. In Xpro India Ltd. vs. CCE 1992 (60) ELT 433, this Hon ble Tribunal has relied upon various Supreme Court decisions to hold that amended provision can be looked into for the purpose of understanding the meaning of the original provision. Amendment to Explanation 2 of Rule 2(k) of the Cenvat Credit Rules w.e.f. 7.7.2009 is not clarificatory in nature and, therefore, it cannot be rely to deny the cenvat credit on steel items used in construction of structures during the notice period which is prior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or credit. The High Court observed that the principle laid-down by the Hon ble Supreme Court in Rajasthan Spinning and Weaving Mills Ltd. (supra) is applicable to such situation. 7. We note that the Tribunal has been consistently following the ratio that the steel items when they are used in fabrication of capital goods and their accessories inside the manufacturer premises are eligible for credit by applying user test as evolved by the Hon ble Supreme Court in Rajasthan Spinning and Weaving Mills Ltd. (supra). A reference can be made to latest decision of the Tribunal in Singhal Enterprises Pvt. Ltd. vs. CC CE, Raipur vide final order No. 53013/2016 dated 12.08.2016. The findings of the Tribunal are as under: 13. Now we turn to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be laid to rest by making a reference to the decision of the Apex Court in the case of CCE, Jaipur vs. Rajasthan Spinning Weaving Mills Ltd. -2010 (255) ELT 481(SC), wherein the Hon ble Supreme Court has considered an identical issue of steel plates and MS channels used in the fabrication of chimney for diesel generating set. The credit stands allowed in the light of Rule 57Q of the erstwhile Central Excise Rules, 1944. In the said judgment, the Apex Court has referred to the user test evolved by the Apex Court in the case of CCE, Coimbatore vs. Jawahar Mills Ltd. -2001 (132) ELT 3 (SC), which is required to be satisfied to find out whether or not particular goods could be said to be capital goods. When we apply the user test to the case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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