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2016 (11) TMI 1179 - CESTAT NEW DELHI

2016 (11) TMI 1179 - CESTAT NEW DELHI - TMI - CENVAT credit - M.S. Channels, Beams, Joists, Rounds, Seats, Angles, Plates, etc. - whether denial of credit on the ground that these items were used for the fabrication or manufacture of items, which have become immovable structures, justified? - Held that: - The Tribunal in a recent case of the M/s. Singhal Enterprises Private Limited Versus The Commissioner Customs & Central Excise, Raipur [2016 (9) TMI 682 - CESTAT NEW DELHI] held that the struct .....

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ime 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 not sustainable. - Denial of credit no .....

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ts were in the process of setting up of cement plant and accordingly, purchased various steel items like M.S. Channels, Beams, Joists, Rounds, Seats, Angles, Plates, etc. for fabrication/erection, commissioning of various capital goods like ducts, hoppers, chutes, packing plates, air slides, duct support, bucket elevator tower, fuel and limestone handling equipment, cable tray, storage silo for fly ash, pipe support. These capital goods are part of various sections of cement plants like raw mill .....

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ndation 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 .....

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ct, 1985. Without these technological support structures, erection, installation and operation of huge machinery would not be possible. It was submitted that these technological structures, therefore, qualify to be considered as parts/components/accessories of all capital goods. 3. The availability of cenvat credit of duty paid on these types of steel items was subject matter of decision in large number of cases by the Tribunal, High Courts and Supreme Court. We note that in the present case, th .....

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s/accessories during a process of cutting, bending, etc. As held by the Tribunal in the case of Mahindra & Mahindra Ltd. 2005 (190)ELT 301 (Tribunal-LB) that the resultant product 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 attache .....

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ts and Hon ble Supreme Court are listed below:- (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 .....

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(230) ELT 597 (P&H). 5. 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. The Hon ble Madras High Court in the case of Thiru Arooran sugar 2015-TIOL-1734-HC-MAD-CX examined the admissibility of cenvat credit on M.S. Plates, angles, channels, H.R. Plates, used in the constructi .....

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held as follows: "8. Even though learned standing counsel appearing for the Revenue submitted that the judgment in the assessee's own case reported in AIT-2011-358-HC = 2011-TIOL-558-HC-MAD-CX (The Commissioner of Central Excise V. M/s. India Cements Limited) had been appealed against, as of today, there are no details; in any event, the 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 .....

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entral Excise Jaipur V. Rajasthan Spinning & Weaving Mills Ltd.) and in particular Paragraph Nos.12 and 13, wherein the Apex Court had applied the user test by following the Jawahar Mills's case, this Court held that steel plates and M.S.Channels used in the fabrication of chimney would fall within the ambit of "capital goods". In the face of this decision in the assessee's own case there being no new circumstance or decision in favour of the Revenue, we do not find any goo .....

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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 Apex Court rejected the appeal filed by the assessee. 11. Thus going by the factual finding, .....

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ee's own case was considered by this Court and by following 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 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." 9. From a perusal of the above said judgment, it is seen that there is no change in the circumst .....

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