TMI Blog2016 (12) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the relevant machines - Accordingly, applying the User Test to the facts in hand, we have no hesitation in holding that the structural items used in the 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 - Appeal allowed - decided in favor of the assessee. - Excise Appeals No.316 and 317 of 2009 - Final Order Nos.53870-53871/2016 - Dated:- 22-9-2016 - Shri S.K. Mohanty, Member (Judicial) and Shri B. Ravichandran, Member Rep. by Shri Yogesh Aggarwal, DR for the appellant/Department. Rep. by Shri Bhisma Ahluwalia, CA and Sh.Krishna Mohan Menon, Advocate for the respondent. ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re used by the respondent were attached to the earth and were immovable structures. As the structures, installation and plants have become immovable, they are not goods in terms of Central Excise Act. As such, the reliance was placed on the Tribunal s decision in the case of Raja Ram and Brothers - 2007 (217) ELT 284 to submit that to be called as capital goods. The goods should satisfy the meaning of excisable goods. Similarly, the credit cannot be given on welding electrodes, gear lubricants. We find that the issue of eligibility of various structural items have been the subject matter of various decisions by the Tribunal, High Court and the Hon ble Supreme Court. We have perused the impugned orders carefully. The first Appellate Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnels, Joists Crane Rails, Angle, etc. M.s. Support structures and parts of structures, Built up Beams, Chequered Plates, Distillator support structures and M.S. structure, Generation Gas System structures, RCC Pipes and Fabricated Head and Tail Farmers eligible for credit as capital goods. In the case of J.K. Cement Works Vs. Commissioner C.Ex. 2004 (178) ELT 388 (Tri-Del.) it is held that supporting structure for supporting the machinery to be regarded as capital goods eligible for Modvat credit. Similar decisions have been rendered in the case of Ispat Industries Ltd. Vs. Commissioner C.Ex 2006 (195)ELT 164 (Tribunal-Mumbai) and Divi s Lab Ltd. Vs. CCE 2006 (196) ELT 285 (T-Bang.). The decision of the Apex Court in the case of M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the lower authority at Para 26 of the order impugned. In this para, the lower authority has held that the credit on these goods were not available on the ground that these have not been used in the Appelalnt s factory in the manufacture of their final product viz. Sponge Iron. It has however been contended by the Appellant that Oxygen Gas and Welding Electrodes have been used for the manufacture of the aforesaid Capital Goods within their factory premises. I find that there is no evidence on record to suggest the Appellant had used Oxygen Gas and Welding Electrodes for repairs and maintenance. In fact, the Hon ble Tribunal, in a recent decision in the case of Llyods Metals and Engineering Ltd. Vs. Commissioner of Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or these steel items when they are used in fabrication of structurals to support the various machineries within the factory. We note that the Tribunal has been consistently following the above ratio with reference to the eligibility of credit on these steel items. Reference can be made to the recent decision of the Tribunal in Singhal Enterprises Pvt. Ltd. - 2016-TIOL-2451-CESTAT-Del. The Tribunal observed as under:- 13. Now we turn to the question, whether credit is admissible on various structural steel items, such as, M.S.Angles, Sections, Channels, TMT Bar etc., which have been used by the appellants in the fabrication of support structures on which various capital goods are placed? The same stands denied by the lower autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue 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 57 Q of the erstwhile Central Excise Rules, 1944. In the said judgement, the Apex Court has refered to the user test evolved by the Apex Court in the case of CCE, Coimbatore Vs. Jawahar Mills Ltd.- 2001 (132) ELT 3 (SC) = 2002-TIOL-87-SC-CX , 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 in hand, we find that the strucutal 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, mater ..... X X X X Extracts X X X X X X X X Extracts X X X X
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