TMI Blog2017 (9) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... - CESTAT MUMBAI] also supports this stand holding that when there is no challenge to the finding of lower authority before the appellate authority, finding of the lower authority is to be upheld - demand of interest set aside. CENVAT credit on Roof Truss and Roof Girder - The appellant has withdrawn credit claim for Cenvat credit amounting to ₹ 72,295/- in respect of Roof Truss and Roof Girder, and therefore, they have reversed the said credit along with interest. Consequently the impugned order in this regard is sustained - demand upheld. Appeal allowed - decided partly in favor of appellant. - E/665/2012-[EX]SM - A/55905/2017-SM[BR] - Dated:- 16-8-2017 - Mr. Ashok K. Arya, (Technical Member) Present Shri Shreya Dahiya, Advocate for the appellant Present Shri Ubahv Sangraj, DR for the respondent ORDER Per: Ashok K. Arya 1. M/s Jindal Steel Power Ltd. is in appeal against Order in Appeal No.198-199/2011 dated 30/11/2011 whereunder inter alia Cenvat Credit amounting to ₹ 2,58,570/- on the items rails and concrete sleepers has been disallowed, and further disallowed Cenvat credit on the items namely Roof Truss and Roof Gir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion in the manufacture or processing of goods for sale appearing in Section 8(3)(b) came up for interpretation. Section 8(3)(b) authorises the Sales Tax Officer to specify goods intended for use by the dealer in the manufacture or processing of goods for sale or in mining, or in the generation or distribution of electricity or any other form of power. Rule 13 provides that such goods must be intended for use in the manufacture or processing of goods for sale or in mining or generation or distribution of power. 11. The aforesaid expression interpreted by the Court, therefore, becomes relevant for our case as well. The test laid down by the Court and noticed above was explained and expanded by the Court in the following words :- In our judgment if a process or activity is so integrally related to the ultimate manufacture of goods so that without that process or activity manufacture may, even if theoretically possible, be commercially inexpedient, goods intended for use in the process or activity as specified in Rule 13 will qualify for special treatment. This is not to say that every category of goods in connection with manufacture of or in relation to manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of Rule 13, is a difficult question on which no opinion need be expressed. But to qualify for specification under s. 8(3)(b) goods must be intended for use of the nature mentioned in Rule 13, in the manufacture of goods. Building materials used as raw materials for construction of plant cannot be said to be used as plant in the manufacture of goods. The Legislature has contemplated that the goods to qualify under sec. 8(3)(b) must be intended for use as raw materials or as plant, or as equipment in the manufacture or processing of goods, and it cannot be said that building materials fall within this description. The High Court was, therefore, right in rejecting the claim of the Company in that behalf. The expression electricals is somewhat vague. But in a factory manufacturing cotton and other textiles, certain electrical equipment in the present stage of development would be commercially necessary. For instance, without electric lighting it would be very difficult to carry on the business. Again electrical humidifiers, exhaust fans and similar electrical equipment would in the modern conditions of technological development normally be regarded as equipment necessary to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear that the railway tracks are installed not only within the plant, but the main objective and purpose for which the capital expenditure on laying these railway tracks is incurred by the appellant is for transporting hot metal in ladle placed on ladle car from blast furnace to pig casting machine through ladle car where hot metal is poured into pig casting machine for manufacture of pig iron. It is clear from the above that the use of railway tracks inside the plant not only form the process of manufacturing, but it is inseparable and integral part of the said process inasmuch as without the aforesaid activity for which railway tracks are used, there cannot be manufacturing of pig iron. 18. We find from the order of the Commissioner that in spite of taking note of the aforesaid use of the railway tracks and accepting the same as correct, the Commissioner denied the relief to the appellant on an extraneous ground, i.e., railway tracks were used for other purposes as well, namely, apart from conveying hot metal and hot pigs, it was used for carrying raw materials and finished goods as well. This can hardly be a ground to deny the relief inasmuch as by incidental use of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, the finding given by the impugned order in this regard is beyond scope of the department s appeal before Commissioner (Appeals). The appellant further pleads that the issue had attained finality and the recovery of interest cannot be upheld. When the department has not raised the issue of charging interest on late reversal of credit in the appeal filed before Commissioner Appeals, the assessee also did not get the opportunity to defend and put up their view point on the same. Since there has been no challenge to the dropping of the demand of interest in case of late reversal of Cenvat credit as held by the lower Original Authority, by the Revenue before Commissioner (Appeal), the findings of the Original Adjudicating Authority are to be upheld. The Tribunal s decision in case of CCE Mumbai V/s Echay Forging Pvt. Ltd. - 2015 (319) ELT 127 (Tri-Mum) also supports this stand holding that when there is no challenge to the finding of lower authority before the appellate authority, finding of the lower authority is to be upheld. Consequently, the impugned order sustaining the demand of interest on the late reversal of Cenvat credit is set aside. 6. In the result, the impugned ..... 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