TMI Blog2016 (11) TMI 1179X X X X Extracts X X X X X X X X Extracts X X X X ..... it Rules, 2004. The amendment carried out in Rule 2(a) to exclude cement, angles, channels, CTD, TMT bars and other items used for construction of factory sheds, building, or laying of foundation or making of structures for support of capital goods cannot be held to be retrospective. Time bar - Held that: - the issue involved in the present dispute is one of interpretation of the provisions of Cenvat Credit Rules and various other legal principles. Admittedly, certain contrary views have been taken by the various judicial bodies. In such situation, we find that invoking longer period of demand on the ground of fraud, suppression, willful misstatement, etc. is not tenable. Hence, on the question of time bar also, the present demand is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... items for fabrication of items embedded to earth and laying foundation and for supporting structures. These cannot be treated either as inputs or capital goods and hence, the cenvat credit was denied. It was also held that the Explanation II to Rule 2(a) of Cenvat Credit Rules, 2004 introduced w.e.f. 7.7.2009 was only clarificatory and applicable for the past period also. Ld. Commissioner placed reliance on the decision of this Tribunal in the case of Vandana Global Ltd. 2010 (253)ELT 440 . The present appeal is against this impugned order. 2. We have heard the ld. Counsel for the appellant and ld. AR for the Revenue. We also perused the appeal records and the written submissions. The dispute is relating to appellant s eligibility for c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be a dutiable item, at a stage before it is used as part of immovable structure. 4. In the present case, we note that a detailed certificate by the Chartered Engineer has been submitted by the appellant . It was certified that the goods are not permanently fixed to the earth /foundation. The items are attached to earth on suitable foundation with braces, ties, nuts, bolts. These fabrications are used to aligned them with main machinery. The Hon ble Supreme Court in the case of Rajasthan Spinning and Weaving Mills Ltd. 2010 (255) ELT 481 (SC), by applying user test held that the credit availed on steel items for fabrication of chimney was admissible. The principle of user test was applied in several cases to allow credit on various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the admissibility of cenvat credit on M.S. Plates, angles, channels, H.R. Plates, used in the construction/erection of plant. The Hon ble High Court held as below:- 8. Learned Standing Counsel appearing for the Revenue heavily relied upon the decision reported in - 2011-TIOL-73-SC-CX (Saraswati Sugar Mills V. Comissioner of Central Excise, Delhi - III) in Civil Appeal No.5295 of 2003 dated 02.08.2011. However, we find that this Court has earlier considered the issue in C.M.A.No.1301 of 2005 dated 31.12.2012, wherein, while dismissing the appeal filed by the Revenue the Division Bench of this Court held as follows: 8. Even though learned standing counsel appearing for the Revenue submitted that the judgment in the assessee's o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC) - 2011-TIOL-73-SC-CX (Saraswati 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 = 2010-TIOL-51-SC-CX (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 Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise Jaipur V. Rajasthan Spinning Weaving Mills Ltd.) and held in favour of the assessee. 10. Hence, following the principles laid down in the decision reported in 2010 (255) E.L.T.481 = 2010-TIOL-51-SC-CX (Commissioner of Central Excise Jaipur V. Rajasthan Spinning Weaving Mills Ltd.) and the earlier decision of this Court in C.M.A.No.3101 of 2005 dated 13.12.2012, we are inclined to allow the appeal, thereby set aside the order of the Tribunal. 6. The Hon ble High Court held that such exclusion made w.e.f. 7.7.2009 cannot be given retrospective effect. The said ratio has been followed by the Tribunal in various cases. 7. The demand was also contested on the question of time bar. The period covered by the demand is from Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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