TMI Blog2016 (10) TMI 675X X X X Extracts X X X X X X X X Extracts X X X X ..... fabrication of support structures would fall within the ambit of ‘Capital Goods’ as contemplated under Rule 2(a) of the Cenvat Credit Rules, hence will be entitled to the Cenvat Credit. CTD bars, TMT bars held as capital goods - CENVAT credit allowed - appeal allowed - decided in favor of appellant. - Excise Appeals No. 974-975/2011-SM - Final Order No. 54134-54135/2016 - Dated:- 14-10-2016 - Shri B. Ravichandran, Member (Technical) Shri Abhishek Jaju, Advocate for the appellants Shri Dharam Singh, AR for the respondent ORDER Per B. Ravichandran These two appeals are dealing with the same set of facts and dispute and are accordingly taken up together. 2. The appellants are engaged in the manufacture of iron a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifiable under Chapter 72 and 73 and cannot be considered either as inputs or as capital goods. He further relied on the decision of the Hon ble Allahabad High Court in the case of Daya Sugar 2015 (316) ELT 394 (Allahabad), decision of the Tribunal in Kisan Sahakari Chini Mills Ltd. 2015 (326) ELT 333 (Tribunal-Delhi) and also on the decision of the Hon ble Supreme Court in the case of Saraswati Sugar Mills - 2011 (270) ELT 465 (SC). 5. Heard both the sides and perused the appeal records. 6. The only issue for decision is regarding appellant s eligibility for cenvat credit of duty paid on CTD bars, TMT bars, etc. used in the manufacture of fabrication of various structures inside their factory. The lower authority relied on the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra) laid down that even if the iron and articles were used as supporting structurals, they would not be eligible for the credit, considering the amendment made w.e.f. 07.07.2009 as a clarification amendment and hence to be considered retrospectively. However, we find that the said decision of the Larger Bench was considered by the Hon ble Gujarat High Court in the case of Mundra Ports Special Economic Zone Ltd. 2015 (04) LCX0197, wherein it was observed that the amendment made on 07.07.2009 cannot be held to be clarificatory and as such would be applicable only prospectively. 15. We find that the controversy can be laid to rest by making a reference to the decision of the Apex Court in the case of CCE, Jaipur vs. Rajasthan Spinn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it of Capital Goods as contemplated under Rule 2(a) of the Cenvat Credit Rules, hence will be entitled to the Cenvat Credit . 7. Regarding the reliance placed by the Revenue on the decision of the Apex Court in the case of Daya Sugar (supra), we find that the Hon ble High Court examined the eligibility of the credit on the packing plates, sheets, sections and staging materials, which were for raising civil structures and accordingly, denied the credit. In the present case, there is no allegation that the items are civil structures. The dispute is that these steel items were used only as support structures. In the facts of the case, it is noted that upon usage, these items become part and parcel of the capital machinery helping in the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fact herein is that the Revenue does not controvert the facts found by the Assistant Commissioner that the impugned goods were used for fabrication of structurals to support various machines like crusher, kiln, hoppers, pre-heaters conveyor system etc. and that without these structurals, the machinery could not be erected and would not function. 9. In the decision reported in AIT-2011-358-HC (The Commissioner of Central Excise v. M/s. India Cements Limited), pointing out to Rule 57Q and the interpretation placed by the Apex Court in the decision reported in 2010 (255) E.L.T. 481 (Commissioner of Central Excise, Jaipur v. Rajasthan Spinning Weaving Mills Ltd.) and in particular Paragraph Nos. 12 and 13, wherein the Apex Court had ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 prejudice the case of the Revenue, given the fact that on the identical set of facts, the assessee s own case was considered by this Court and by following the decision reported in 2010 (255) E.L.T. 481 (Commissioner of Central Excise, Jaipur v. Rajasthan Spinning Weaving Mills Ltd.), the Revenue s appeal was also rejected. In the circumstances, this Civil Miscellaneous Appeal is dismissed. No costs. Consequently, C.M.P. No. 16107 of 2005 is also dismissed. 12. From a perusal of the above said judgment, it is seen that there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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