TMI Blog2017 (3) TMI 1283X X X X Extracts X X X X X X X X Extracts X X X X ..... - appeal allowed - decided in favor of appellant. - E/4056/2012-EX (DB) - A/52521/2017-EX(DB) - Dated:- 24-3-2017 - Shri. M. V. Ravindran, Member (Judicial) And Shri V. Padmanabhan, Member (Technical) Shri B.L. Narsimhan, Advocate for the Appellant Shri Yogesh Agarwal, DR for the Respondent ORDER Per M. V. Ravindran This appeal is directed against the order in original no. 38 39/Commr/CEX/ADJ/STN/2012 dated 21.09.2012. 2. The relevant facts that arise for consideration are appellant is engaged in the manufacture of cement falling under chapter 25 of the first schedule to the Central Excise Tariff Act 1985. For manufacturing of cement appellant requires electricity which is used at various stages of produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s final product, Vidyut Company is an independent legal entity and on construction of these transmission lines they are property of the said Vidyut Company and the transmission line or parts thereof have no integral relation co-extensive with the process of manufacture of appellants final products. 3. Ld. Counsel submits that Cenvat Credit is admissible as usage of electricity in relation to manufacturing process is not disputed and it is essential for the purpose of which, in order to keep uninterrupted power supply, a dedicated power line was proposed by the appellant to the Vidyut Co. which was accepted and they were permitted to lay dedicated transaction line. It is his submission that the said dedicated transmission line supplies po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for consideration is whether the appellant is eligible to avail cenvat credit on the items which are used in the transmission line which has been erected as dedicated transmission line only for the appellant s use. 6. The Adjudicating authority has in para 16.1 16.4 come to a conclusion that the transmission line which is laid down is undisputedly a immovable property but also is the dedicated line for the appellants factory. But held against the appellant only on the ground that if it is immovable property, Cenvat Credit cannot be allowed; also on the findings that the said transmission line do not have any relation to the process of manufacture of the final products of the appellant. 7. We find that the adjudicating authority ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the factory and manufacturer. The appellant is neither having any factory nor he is manufacturer. The appellant is a service provider of port. We need not go into this question as to whether the appellant is a factory or manufacturer or service provider in view of the fact that it is not disputed by Mr. Y.N. Ravani, learned counsel appearing for the Revenue in this Tax Appeal that the appellant provides service on port for which he is getting jetty constructed through the contractor and the appellant has claimed input credit on cement and steel. The cement and steel were not included in Explanation 2 from 2004 up to March, 2006. The Cenvat Credit Rules, 2004 were amended in exercise of the powers conferred by Section 37 of the Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court squarely applies to the facts of the case and answered the question on which the appeal has been admitted. 9. In yet another case of Singhal Enterprises Pvt. Ltd. Vs. CC Raipur 2016-TIOL-2451-CESTAT-CC this Tribunal applying the ratio of user test on structural items used in fabrication of support structure allowed the Cenvat Credit of the duty paid on such structural items. We reproduce the ratio in para 13, 14, 15: 13. Now we turn to the question, whether credit is admissible on various structural steel items, such as, MS 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 lowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S channels used in the fabrication of chimney for diesel generating set. The credit stands allowed in the light of Rule 57Q of the erstwhile Central Excise Rules, 1944. In the said judgment, the Apex Court has referred to the user test evolved by the Apex Court in the case of CCE, Coimbatore vs Jawahar Mills Ltd., 2001 (132) ELT 3 (SC), 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 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. canno ..... X X X X Extracts X X X X X X X X Extracts X X X X
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