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TMI Blog2020 (5) TMI 521X X X X Extracts X X X X X X X X Extracts X X X X ..... structural items used for supporting the capital goods not covered under the definition of capital goods as provided in Rule 2(a) of Cenvat Credit Rules, 2004. The availed credit was assessed as Rs. 14,43,152/-, accordingly, was proposed to be recovered vide show cause notice No. 2823 dated 12.07.2017 alongwith the interest at appropriate rate and the proportionate penalties. The said proposal was confirmed initially vide the Order in original bearing No.11 of 10.08.2018. The appeal thereof has been modified by setting aside the demand of Rs. 8,23,118/- out of the confirmed demand, it being with respect to such 26 number of invoices vide which the parts of the biomass boilers (the capital goods were purchased. However, the remaining demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jected the Cenvat Credit taken on 46 number of invoices. However, the demand with respect to 26 invoices thereof has already been set aside, holding the structure mentioned therein to be the parts of the biomass boiler are not falling in Clause- 1 of Rule 2(a) of Cenvat Credit Rules, 2004 (MS Structure fabrication) hence have rightly been denied para 13 and 14 of the order-under-challenge have been impressed upon. Justifying the said order appeal is prayed to be dismissed. After hearing the rival contentions, perusing the entire record and going to the case law as referred, I am of the opinion as follows. That the Cenvat Credit is available either with respect to the inputs or the capital goods used by the manufacturer in manufacturing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contention of the appellant. As already noted above that what stands excluded to be called as input is the structure which is fabricated out of the objects like MS Angles/Sheets/ Joints Fights, etc. The same is not true for the structure in the present case. Mere nomenclature of a part of the boiler as MS Structure is not sufficient to falsify the 'User Test' principle as was laid down by Hon'ble Apex Court in the case of CCE, Jaipur Vs. Rajasthan Spinning and weaving Mills Ltd. Reported as 2010 (255) ELT 481 (SP). This judgement was subsequently followed by Hon'ble High Court of Madras in the case of CCE Tiruchirapalli Vs. M/s India Cements Ltd. reported as 2012 (285) ELT 341 (Mad.) wherein it was held that once any structure ..... X X X X Extracts X X X X X X X X Extracts X X X X
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