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2016 (11) TMI 229 - CESTAT NEW DELHI

2016 (11) TMI 229 - CESTAT NEW DELHI - TMI - Demand - Cenvat credit - Period of limitation - the plant and machinery and capital goods involved in the manufacture of cement/electricity are huge structures integrated into a particular plant and machinery to obtain desired results - Held that: - Even to place the hoppers, in a particular manner, fabrications are required. Without such fabrication, the hoppers cannot be put into use. Here, it is not tenable to hold that the various iron and steel a .....

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Final Order No. 54381/2016 - Dated:- 21-10-2016 - Dr. Satish Chandra, President And Shri B. Ravichandran, Member (Technical) For the Appellant : Sh. B. L. Narasimhan, Advocate For the Respondent : Sh. Yogesh Agarwal, AR ORDER Per B. Ravinchandrn The appeal is against order dated 29.02.2012 of Commissioner of Central Excise, Jaipur-II. The appellants are engaged in the manufacture of cement liable to central excise duty. During the period March, 2007 to March, 2009, they have availed cenvat cred .....

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re of storage tank, boilers, hoppers, ducts, etc., which are embedded to earth and became immovable property and hence, not goods. Since these are not excisable items, capable of being bought and sold in the market, therefore, credit is not eligible to them. Reliance was placed on the decision of th e Tribunal in the case of Vandana Global Ltd. 2010 (253 ) ELT 44 0 (Tribunal-LB) to hold that steel items used for laying foundation and for building support structures cannot be treated either as in .....

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s were put to various processes like cutting, bending etc. in order to fix them to the required structures. As held by the Tribunal in case of Mahindra & Mahindra Ltd. 2005 (190) ELT 301 (Tribunal-LB), the items that emerge before their integration to the various specified capital goods are liable to excise. On this ratio, the contention that these iron and steel items were used in the creation of immovable property is not tenable. 4. Ld. Counsel for the appellant relied on the various decid .....

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nd was also contested on the question of time bar as the issue involved is purely of interpretation of provisions and no malafide can be attributed to the appellant to invoke longer period. 6. Ld. AR reiterating the findings of the lower authority submitted that iron and steel items falling under Chapter 72 and 73 can neither be considered as inputs or capital goods. They are not used in the manufacture of any specified capital goods inside the appellan s unit. Further, fabrication of immovable .....

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ese whole integrated structures, there are specific identifiable capital goods/machinery, which are brought in by the appellant. Admittedly, these machineries /capital goods cannot be put into use unless they are placed and integrated in a desired manner for the manufacture of final products. The dispute in the present case is relating to the usage of various iron and steel items like angles, sheets, channels, etc. used by the appellant. On perusal of the chart containing usage of various items .....

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bricated. Even to place the hoppers, in a particular manner, fabrications are required. Without such fabrication, the hoppers cannot be put into use. Here, it is not tenable to hold that the various iron and steel angles, channels, etc. used in conjunction with hoppers, are pure civil structures and cannot be considered as accessories or components of such hoppers. Such argument will be factually and legally devoid of merits. 9. It is relevant to note that the Hon ble Supreme Court in Rajasthan .....

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low:- (a) CCE Vs. India Cements Ltd.-2012(285) ELT 341(Madras) (b) India Cements Ltd.-2015(321) ELT 209 (Mad. (c) UOI Vs.Associated Cement Co.-2011(267) ELT 55(Chattisgarh) (d) Singhal Enterprises Pvt.Ltd.-2016-TIOL-2451-CESTAT-DEL (e) CCE V.Jindal Steel & Power Ltd.-2015(330)ELT708(T-Delhi) (f) Jayaswal Neco Ltd. -2015(319) ELT 247(SC) (g) Ispat Industries Ltd.-2006(195)ELT 164(T-Mum) (h) SKS Ispat & Power Ltd.-Final Order No.53591/2016 dt.16.09.2016 (i) Ultratech Cement Ltd.-Final Orde .....

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aced? The same stands denied by the lower authority. The learned DR has sought disallowance of the same by citing the decision of the Larger Bench in the case of Vandana Global Ltd. (supra) and other judgments. Further, he has brought to our notice and emphasised the amendment carried out in Explanation-II to Rule 2(a) which defines the term input w.e.f. 07.07.2009. It has further been pleaded that the cenvat credit claimed for the period prior to this will be covered within the decision of the .....

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ra 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 Spinning & Weaving Mills Ltd. -2010 (255) ELT 481(SC), wherein the Hon ble Supreme Court has considered an identical issue of steel plat .....

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in hand, we find that the structural steel items have been used for the fabrication of support structures for capital goods. The appellants have argued that the various capital goods, such as, kiln, material handling conveyor system, furnace etc. cannot be suspended in mid air. They will need to be suitably supported to facilitate smooth functioning of such machines. It is obvious that the structural items have been suitably worked upon for this purpose. Accordingly, the goods fabricated, using .....

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