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TMI Blog2017 (10) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... ause Notice was issued to them for recovery of Rs. 3,10,656/- for the period October 2008 to April 2011. On adjudication, the demand was confirmed alongwith interest and equal amount of penalty. On appeal, the Ld. Commissioner (Appeals) upheld the order of the Adjudicating Authority and rejected their appeal. Hence, the present appeal. 3. The Ld. Advocate Shri Rahul Gajera for the appellant submits that all these items were used for fabrication of capital goods installed in the factory, hence, eligible to credit as per the definition of 'input' prescribed under Rule 2(k) of CCR, 2004. He submits that the credit for fabrication of the capital goods is admissible to the appellant in view of the judgement of the Principal Bench At Delhi in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the period prior to this will be covered within the decision of the Larger Bench in the case of Vandana Global Ltd. (supra). 14. The Larger Bench decision in Vandana Global Ltd.'s case (supra) laid down that even if the iron and articles were used as supporting structures, they would not be eligible for the credit. Considering the amendment made w.e.f. 7-7-2009 as a clarification amendment and hence to be considered retrospectively. However, we find that the said decision of the Larger Bench was considered by the Hon'ble Gujarat High Court in the case of Mundra Ports & Special Economic Zone Ltd., 2015 (04) LCX0197 - 2015 (39) S.T.R. 726 (Guj.), wherein it was observed that the amendment made on 7-7-2009 cannot be held to be clarificato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and accessories of such capital goods. 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." 6. Also, I find merit in the contention of the Ld. AR for the Revenue that the Appellant should establish the said use by adducing evidences. In the result, the matter is remanded to the adjudicating authority to examine the claim of the appellant on the eligibility of credit on the aforesaid items and the Appellants are free to adduce evidence including the certificate from a Chartered En ..... X X X X Extracts X X X X X X X X Extracts X X X X
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