TMI Blog2019 (9) TMI 1378X X X X Extracts X X X X X X X X Extracts X X X X ..... rary - the contentions of the Appellant is agreed that such iron and steel article used for installation of the Distillery Division are eligible for credit both as inputs as well as capital goods within the meaning of Rule 2(k) and Rule 2(a) respectively of the CCR. We find that the definition of input as contained in Rule 2(k) of the CCR was amended by insertion of Explanation 2 to specifically exclude iron and steel articles used in foundation or for making structures to support capital goods from its purview. Further, such items also qualify as capital goods by applying the user test evolved by the Hon ble Supreme Court in COMMISSIONER OF C. EX., COIMBATORE VERSUS JAWAHAR MILLS LTD. [ 2001 (7) TMI 118 - SUPREME COURT] reported in COMM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Plate, MS Bar, MS Flat, MS Angle etc. (in short structural items) used for installation/commissioning of the distillery division and for repairs and maintenance of various capital goods within the sugar division. 3. Pursuant to and inspired by the CERA Audit, a Show-cause Notice dated 19 January 2011 was served upon the Appellant proposing denial of Cenvat credit on the structural items on the purported ground that these were used as construction/structural material in the distillery division and being general purpose item do not qualify as capital goods within the meaning of Rule 2(a) of the Cenvat Credit Rules (CCR). The demand proposed in the Notice was confirmed by the Commissioner vide Order dated 27 March 2012 on multifarious groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by the Chartered Engineer, M.G. Bhat Associates. The adjudicating authority could not have questioned the domain knowledge and wisdom of an expert and could not have brushed aside the said Certificate unless another expert opinion was obtained to the contrary. [Refer - Shree Narmada Khand Udyog Sahakari Mandli Ltd. 2015 (329) ELT 820 and Intercontinental India 2003 (154) ELT 37]. C. The structural items, involving credit of ₹ 8,48,532/- was availed for repairs and maintenance of capital goods falling under Chapter 84 and Chapter 85 of the CETA within the sugar division. It is also settled by various decisions that credit is available on structural items used for repairs and maintenance of Plant Machinery. Referen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ex ]. 12 Structural items were used for general purposes like support structure, platform etc. as evident from photographs, it cannot be concluded that the equipments manufactured were out of disputed structural items within the disputed period. Credit eligible even when structural used as support structure/platform being integral part of the tanks/equipments. 13 Not furnished any evidence regarding the actual date of erection of the distillery unit, the contracts entered with Praj Industries Limited and Peackon Engineering Limited to ascertain whether goods-inquestion were purchased on payment of excise duty. Moreover, since the tanks were fabricated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of being hit by limitation as the credit taken was duly disclosed in the ER-1 returns by inviting our attention to the following decisions: Diamond Power Infrastructure 2016 (44) STR J60 (Guj HC) Ultratech Cement 2017 (347) ELT 3 (Chattisgarh HC) 5. The learned Authorized Representative appearing on behalf of the Respondent Revenue supports the Order-in-Original and reiterates the findings of the adjudicating authority. 6. Heard both sides and perused the appeal records. 7. We find that the Notice dated 19 January 2011 issued based on the Audit Objection from CERA did not dispute the receipt of the structural items in the factory premises of the Appellant or the duty paid nature thereof. The eligibility ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st evolved by the Hon ble Supreme Court in Jawaharlal Mills case 2001 (132) ELT 3 reported in Rajasthan Spinning Case 2010 (255) ELT 481. Even if these items were used for repairs and maintenance of capital goods, the same were eligible for credit in view of the decision of the Hon ble Allahabad High Court in DSCL Sugar (supra). We also find force in the contention of the Appellant that the demand was even otherwise hit by limitation following the decision of the Hon ble High Court in Ultratech case (supra) and Diamond Power Infrastructure (supra). In view of the above, the appeal is allowed both on merits and on limitation. (Operative part of the order was pronounced in the open Court.) - - TaxTMI - TMITax - Central Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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