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TMI Blog2019 (9) TMI 1527X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant on goods like TMT bars, plates, channels, cement, MS angles, CR coils, joints, shapes and sections, etc. Despite that those were used in construction of civil structures of factory shed and parts thereof. Resultantly, vide show cause notice bearing No. 2968 dated 06/07.11.2013 the reversal of allegedly wrongly availed cenvat credit of Rs. 12,96,026/- alongwith the interest at the appropriate rate and proportionate penalty was proposed. The proposal was initially confirming Order-in-Original No. 23(C.Ex.)JP/2015-JC dated 29 September, 2015 and the Appeal thereof was rejected vide the Order under challenge. Being aggrieved the appellant is before this Tribunal. 2. I have heard Mr. Arun Goyal, learned advocate for the appellant and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Central excise, Jaipur-I reported at 2017-TIOL-516-CESTAT-Del. Learned Counsel has prayed for Order under challenge to be set aside and Appeal to be allowed. 4. While rebutting these arguments, learned Authorised Representative has impressed upon that the TMT bars, coils, channels, etc. were only being used for construction of civil construction as that of factory shed. The Authorised Representative has relied upon Max G.B. Limited Vs. Commissioner of Central Excise, Chandigarh reported at 2003 (159) E.L.T. 203 (Tri.-Del.). The cenvat credit availed on these goods by the appellant is, therefore, has rightly been denied. Impressing upon para No. 5.6 of the Order under challenge where the Commissioner(Appeals) has duly dealt wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that if the articles on which the appellant herein has availed the cenvat credit fulfil the said User Test Principle, those clearly falls within the definition of capital goods as defined under Rule 2(k) of the Cenvat Credit Rules, 2004. 6. In the present case though the Department is alleging that the items/goods as mentioned above have only been used in the civil construction of factory shed but it is observed that the said allegation has been contested by the appellant since beginning. It is observed from the Order-in-Original also that the main ground of defence by the appellant was about the use of objected articles also for the plant and machinery support. It is also observed as otherwise not been denied by the Department that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the certificate issued by the authorised Chartered Accountant's or Chartered Engineer's having presumption of correctness attached to it cannot be rejected unless and until there is sufficient evidence to rebut the said presumption attached to those certificate. I observe except from the mere oral allegation about the impugned goods to be used for civil structure of factory sheds there is no cogent evidence produced by the Department on record to falsify these certificates. I find no reason to reject the certificates rather I hold the certificates as an evidence produced by the appellant proving the satisfaction of the user principle test as discussed above, as far as the impugned objected goods are concerned. 8. Finally coming to the aspe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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