TMI Blog2017 (7) TMI 679X X X X Extracts X X X X X X X X Extracts X X X X ..... and Weaving Mills [2009 (5) TMI 15 - SUPREME COURT OF INDIA], where it was held that the assessees had made payment of the demands simply in order to buy peace and to avoid any litigation. In those circumstances the imposition of penalty was wholly unjust - duty with interest upheld - penalty set aside. CENVAT credit - capital goods - MS channels, beams, TMT bars, CTD bars, etc. - Held that: - structural items such as MS channels, beams, TMT bars, CTD bars, etc. are held to be eligible for availment of CENVAT credit despite being used for fabrication of support structures for various capital goods. In the case in hand, it is on record that the respondent in this case had used these structural items for fabrication of capital goods which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cture of final products which are liable to Central Excise duty. Therefore denial of Cenvat credit, in question, is contrary to the provisions of Rule 2(l) of Cenvat Credit Rules, 2004. Appeal allowed - decided in favor of appellant. - E/MISC/30480/2016 in E/22682/2014-DB, E/23436/2014-DB, E/22682/2014-DB, E/23436/2014-DB - A/30999-31000/2017 - Dated:- 20-6-2017 - Mr. M.V. Ravindran, Member (Judicial) And Mr. Madhu Mohan Damodhar, Member (Technical) Shri Y. Sreenivasa Reddy, Advocate for the assessee Shri Guna Ranjan, Superintendent ( AR ) for the revenue ORDER [Order Per : M. V. Ravindran] When this application is called out, it is submitted by the learned AR that this application is for out-of-turn hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the CENVAT Credit Rules, 2004. We find that the allegations in the show-cause notice are general in nature, like, that the appellants had availed the CENVAT credit fraudulently with intention to evade duty and there are no specific allegations as required under the provisions of Section 11AC or Rule 15(2) of the CENVAT Credit Rules, 2004. In the absence of any specific allegations, we hold that the issue seems to be covered by the judgment of the apex court in the case of Rajasthan Spinning and Weaving Mills [2009(238) ELT 3 (SC)]. In view of this, we hold that the duty liability of ₹ 5,76,896/- along with interest is upheld and penalty imposed by the adjudicating authority of this amount is set aside. 4.2. Appeal of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were removed from the factory of the supplier on payment of Central Excise duty under chapter No.72 and the capital goods fabricated from these items as claimed by the respondent herein in this appeal are attached to the earth and cannot be called as excisable goods and hence the CENVAT credit availed is incorrect. As regards the input services, it is his submission that CBEC vide Circular No.98/1/2008-ST dt. 04/01/2008 has categorically clarified that the input services which are used for the construction of the factory premises are not eligible to be availed as CENVAT credit. 5.3. On behalf of the respondent, the learned counsel submits that as regards the issue of availment of CENVAT credit on the MS beams, angles, plates etc., the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el plates and MS 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 v. Jawahar Mills Ltd., - 2001 (132) 3 (S.C.), 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Tribunal in the case of Liugong Indian Pvt. Ltd.(supra) and the Bench after considering the provisions of Rule 2(l) of the CENVAT Credit Rules, 2004 held as under: 5. We have considered the submissions from both the sides and perused the records. There is no dispute that the services, in question, in respect of which the Cenvat Credit has been taken are the services relating to setting up of the factory and have been used for this purpose only. During the period of dispute the definition of input service as given in Rule 2(l) of Cenvat Credit Rules, 2004 was as under :- input service means any service :- (i) used by a provider of taxable service for providing an output service, or (ii) used by the manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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