TMI Blog2017 (11) TMI 1329X X X X Extracts X X X X X X X X Extracts X X X X ..... t on suitable support which became part of the storage tank i.e. capital goods - There is no doubt that such clinker storage tank is used in the manufacture of their final products - It has been consistently held by the Tribunal that such support structures are to be considered as part of the capital goods and goods used in the fabrication of such structures will be covered as inputs - credit allowed. CENVAT credit - certain quantity of steel structures which have been procured by the assessee during the period prior to 01.04.2011 (date of amendment of definition of inputs) - credit for such items have been availed in the subsequent years when the new definition was in place - Held that: - This Tribunal has been consistently holding that cenvat credit is admissible in respect of such steel structures used in the manufacture of capital goods - even for the period prior to 01.04.2011 cenvat credit was admissible. Appeal allowed - decided in favor of appellant. - Excise Appeal Nos. 54147 & 52637 of 2015, Excise Appeal No. 52840 of 2015 - Final Order Nos. 57735 – 57737/2017 - Dated:- 9-11-2017 - Mr. Justice (Dr.) Satish Chandra, President And Mr. V. Padmanabhan, Member (Techn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not applicable on any item, then the consequential provisions of any subordinate law in the form of Rules or Notifications issued thereunder shall not apply. Therefore, the provisions of Cenvat Credit Rules, 2004 issued under Section 37 of the Central Excise Act, 1944 shall not be applicable for allowing credit in respect of inputs used in an item on which provisions of Transfer of Properties Act apply. Therefore, it appeared that the aforesaid items could not be termed as inputs for the purpose of availing cenvat credit under the provisions of Cenvat Credit Rules, 2004 and credit of duty taken in respect of such items is not admissible to them. Accordingly, following two show cause notices were issued: (1) SCN dt. 24.2.2014 for recover of Cenvat credit amounting to ₹ 2,26,40,282/- alongwith interest and penalty under Rule 15 of the CCR, 2004. (2) SCN dt. 5.5.2014 for recovery of Cenvat credit amounting to ₹ 2,24,12,100/- alongwith interest and penalty under Rule 15 of the CCR, 2004. 3. The Commissioner while passing the above orders-in-original held as under- i) The definition of input provided under Rule 2(k) of the Cenvat Credit Rules, 2004 (hereinafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und during verification attached to earth and hence not eligible for cenvat credit. Accordingly, i) in respect of show cause notice t. 24.02.2014, the Commissioner allowed the Cenvat credit of ₹ 1,73,82,513/- out of the total demand of ₹ 2,26,40,282/-; and disallowed the cenvat credit of ₹ 52,57,769/- and ordered to recover the same alongwith interest. ii) Further, in respect of show cause notice dt. 05.05.2014, the Commissioner allowed the cenvat credit of ₹ 2,22,64,273/- out of the total demand of ₹ 2,24,12,100/- and; disallowed the cenvat credit of ₹ 1,47,827/- and ordered to recover the same alongwith interest. He also imposed consequential penalties under Rule 15(1) of the Cenvat Credit Rules, 2004. 4. Aggrieved by the above order, appeals have been filed both by the assessee (against the portion of the order in which certain cenvat credit stands disallowed) and also by Revenue (against the portion of the order where cenvat credit was allowed). 5. With the above background, we heard Ms. Rinky Arora, ld. Advocate for the assessee and Sh. H.C. Saini, ld. AR for the Revenue. 6. Ld. AR summarised the grounds of Revenue appeal as f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the manufacture of final products whether directly or indirectly and whether contained in the final product or not and includes lubricating oils, greases, cutting oils, coolants, accessories of the final products cleared along with the final products, goods used as paint or as packing material, or as fuel, or for generation of electricity or stream used in or in relation to manufacture of final products or for any other purpose, within the factory of production; The adjudicating authority has recorded that there is no dispute that all the impugned structural steel items have been used in the factory of the assessee Consequently, it is covered within the main definition of inputs. From the impugned order we also find that the adjudicating authority has proceeded step by step and discussed the various relevant exclusion. 11. He has referred to the certificate issued by the Chartered Accountant regarding the utilisation of the impugned goods to conclude that these goods have been used for fabrication, manufacture and upgradation of capital goods which are used for manufacture of final product. He has further concluded after verification of records that none of the goods have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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