TMI Blog2018 (7) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Appellant Shri R.Subramaniyan, AC (AR) For the Respondent ORDER The brief facts of the case are that the appellant is manufacturers of Kraft Paper falling under Chapter Sub Heading No.48042900 of the Central Excise Tariff Act, 1985. The appellant is availing Cenvat Credit of duty paid on the inputs and the Capital Goods used in the factory for the manufacture of dutiable goods. The appellant while commissioning its unit in July, 2009 had availed Cenvat credit on the items procured namely Beam, MS Angle, MS Channel, Joint and MS Bars which are falling under Chapter 72 which were used to provide support to the Boiler and other machinery for manufacture of pulp. As a precautionary measure, the appellant notified the depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmed the proposals made in the show cause notice. The appellant did not meet with success on its appeal before the Commissioner of Central Excise (Appeals), who vide his Order-in-Appeal dt.21/4/2017 dismissed the appeal. Against the Order-in-Appeal, the assessee is before this forum. Sh.S.Sivaramakrishnan appearing for the appellant primarily contended that the department is not at all justified in invoking the extended period of limitation, when the show cause notice came to be issued nearly 5 years after the appellant voluntarily brought to the notice of the revenue as to the availment of Cenvat credit. On merits, it is the case of the Ld.Counsel that the recent decision of the jurisdictional High Court in the case of Thiru Aroora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, platform, and beams for support purposes and not connected with the functioning of the capital goods. This, according to the Commissioner (Appeals), are only items of general structural use falling under Chapter 72 specifically not figuring in the definition of capital goods. 5. Ld.Counsel appearing for the appellant drew my attention to the decision of Hon.Madras High Court in the case of Thiru Arooran Sugars (supra) also took me through the questions of law urged before the Hon.High Court which is at paragraph 4.1 and specifically to question which relates to the issue on hand i.e. question No.4. For convenience, all the 4 questions are extracted below : i. Whether the order of the Tribunal is right in law inasmuch as it giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Heading 68.04. The structural which came within the ambit of Chapter 72, Cenvat Credit was therefore wrongly availed by the assessee therein, according to the Revenue. The Hon.Court has referred to decisions of various Courts relied on by both the parties, has also referred to Rule 57Q which is pari materia with Rule 2 (a)(A) of 2004 Rules and held as under :- 21. A perusal of the aforesaid extracts would show that the Revenue in the context of Rule 57Q was of the view that certain capital goods were made eligible for grant of Modvat credit, based on classification, while components and spares of such capital goods were granted the same benefit based on description. For capital goods to be eligible for Modvat credit, they had to fall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gives effect to the Notification No. 16/2009 prior to 7-7-2009 overlooking the fact that the same is made expressly effective only from the aforesaid date? 28. The Division Bench allowed the appeal and, set aside the order of the Tribunal. In effect, the Court held that the 2009 Notification would not come in the way of TAS, in that case, in claiming that the structurals, which were purchased and utilised for keeping in position the plant and machinery could be treated as inputs, within the meaning of Rule 2(k) of the 2004 Rules, for the period prior to its issuance, i.e., 7-7-2009. 29. Therefore, besides anything else, what clearly comes to fore is that the `various Division Bench of this Court have consistently ruled in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mills Limited case, the Court relied upon the user test, enunciated, in its earlier judgment rendered in: Jawahar Mills Limited case. Clearly, the Court held that steel plates and MS Plates, i.e., structurals used in the fabrication of the chimney, which were an integral part of the diesel generating set would fall within the ambit and scope of definition of capital goods. The Court, went on to further hold that such equipment had to be treated as an accessory. As a matter of fact, in Saraswathi Sugar Mills case, the Court, while noticing the view taken in Rajasthan Spinning and Weaving Mills Limited said that as long as it could be shown that the item in issue was an integral part of the machinery, i.e., capital goods, it would fal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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