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TMI Blog2019 (3) TMI 237X X X X Extracts X X X X X X X X Extracts X X X X ..... g to not to allow the credit of Rs. 4,63,296/- rather to recover the same alongwith the interest at the appropriate rate and the proportionate penalties. The original adjudicating authority confirmed the said proposal of demand vide the order No.25 dated 30th March, 2017 and the appeal thereof has been rejected vide order in appeal No.553 dated 30th January, 2018. Being aggrieved, the appellant is before this Tribunal. 2. Ms. Priyanka Goel, ld. Advocate for the appellant has submitted that all the articles on which the credit has been denied are in-fact used by the appellant for manufacture of their rolling machines, which are used in the manufacture of leaf springs assemblies, the final product of the appellant. It is impressed upon that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er (Appeals) has been clear enough to deny the impugned goods to be the capital goods. It is also submitted that the appellant has been showing the same in its records of capital goods credit and also has availed 50% of the credit on duty on these goods during the first financial year of the clearance thereof and remaining 50% in the subsequent financial year, which is applicable only when the goods whereupon the credit is availed are the capital goods. But it is appellant's own case that the impugned goods are not the capital goods but the inputs. Relief claimed on such a contradictory stand has rightly been declined by the Commissioner (Appeals). Appeal is accordingly, prayed to be dismissed. 4. After hearing both the parties, I observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for laying of foundation or making of support structure. The perusal of the order further shows that these submissions have absolutely been not dealt with by Commissioner (Appeals), except holding that the appellant has failed to produce any documentary evidence to indicate that disputed items were used in manufacturing of said capital goods. 4.2 The ld. Counsel for the appellant has relied upon the certificate of Chartered Engineer of the appellant, which is also the part of the record of this appeal. She in addition has submitted that the said certificate was produced before the adjudicating authorities below and has also impressed upon that the prior show cause notice on the same issue has been decided by the Department in favour of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brication / making of the rolling mills I hold that the impugned goods qualify even the user test principle, as has been held by Hon'ble Apex Court in the case of CCE, Coimbatore vs. Jawahar Mills Ltd. reported in 2001 (132) ELT 3 (SC) 4.5 Now coming to the plea of appellant about show cause notice being barred by time, it is held that the previous order of the Department dated 24th March, 2017 is well on record. Perusal makes it clear that the similar issue and the similar demand was raised in that case vide show cause notice dated 23rd September, 2014. Not only this, the said show cause notice includes the part period of the present demand. Thus, it stands clear that the issue of availment of cenvat credit by the appellant on the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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