TMI Blog2018 (7) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2013 - Final Order No. 52470 /2018 - Dated:- 10-7-2018 - Hon ble Mr. Anil Choudhary, Member (Judicial) And Hon ble Mr. C L Mahar, Member (Technical) Shri Amresh Jain, AR for the Appellants-Revenue Shri B L Narasimhan and Shri Rachit Jain, Advocates for the Respondent- assessee ORDER Per : C L Mahar The brief facts of the matter are that the respondent-assessee is registered with the department as a Service Tax assessee under the category of Commercial and Industrial Construction services and supply of tangible goods services . The respondent-assessee has entered into an agreement with M/s. Aditya Cement, Chittorgarh for construction of Cement plant as well as for laying down the foundation of capital goods whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Commissioner who vide his order dated 20.6.2013 held that an amendment to Rule 2(k) of Cenvat Credit Rules, 2004 was inserted vide Notification No. 16/2009 dated 7.7.2009 wherein the above mentioned raw materials such as Cement, angles, channels CTD/ TMT bars and other items used for construction of factory shed, building or laying down of foundation for making of structures for support of capital goods have been excluded from the scope of inputs vide above mentioned Notification No. 16/2009 CE (NT) dated 7.7.2009. Since the demand for reversal of the Cenvat Credit was for the period from March, 2007 to April, 2010, and as the amendment to the definition of inputs under Rule 2(k) of Cenvat Credit Rules, 2004 has come into effect from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er departmental clarifications. This Tribunal observed that intention behind amendment to Rule 2(k) of CCR, 2004, is merely clarificatory and there is no indication that the amendment has been made to change the scope of Cenvat Credit Rules, 2004, As this Tribunal has held that since the amendment is only clarificatory, which has retrospective applicability. Making this as a ground for reviewing the above mentioned order, the department had argued that the Commissioner should not have allowed the Cenvat Credit taken by the respondent-assessee on the goods used in the construction of factory shed and in laying down the foundation of various capital goods. 5. We have heard both the sides and also perused the relevant papers of the appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment and cannot be treated to be clarification of particular thing or goods and/or input and as such, the amendment could operate only prospectively. In our opinion, the view taken by the Tribunal is based on conjectures and surmises as the Larger Bench of the Tribunal used the expression that intention behind amendment was to clarify. The coverage under the input from where this intention has been gathered by the Tribunal has not been mentioned in the judgment. There is no material to support that there was any legislative intent to clarify any existing provision. For the same reason, as mentioned above, the decision of the Apex Court in Sangam Spinners Limited v. Union of India and Others, reported in (2011) 11 SCC 408 = 2011 (266) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bly supported to facilitate smooth functioning of such machines. It is obvious that the structural items have been suitably worked upon for this purpose. Accordingly, the goods fabricated, using such structurals, will have to be considered as parts of the relevant machines. The definition of Capital Goods includes, components, spares 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. 8. In the above mentioned orders/judgements it is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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