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TMI Blog2023 (11) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... e extended period provisions. The Appellants clarified the usage of items like TMT Bar, GS Sheets, MS Angles, MS Channels, Plates, Joists and HR Coil etc. in the manufacture of their Capital goods as well as for providing support mechanism for their capital goods. They also submitted the Chartered Engineer's Certificate dated 20/05/2009 giving the details of such items used in various capital goods. The Appellant submitted that the Capital Goods, inputs and consumables were procured and utilized in the manufacture of capital goods, even during the period when the Appellant's factory was previously owned by M/s. Dutta Iron & Steel Pvt. Ltd. They have submitted that since all the goods have been used within the factory premises and they have taken over the entire assets and liabilities of the earlier Company, they are eligible to take the Cenvat Credit. The Adjudicating Authority, after following due process has confirmed the demand. Being aggrieved, the Appellant is before the Tribunal. 2. The Learned Counsel appearing on behalf of the Appellant submits that the confirmed demand is basically on the following two counts:- (a) Cenvat Credit taken on Capital goods and inputs used fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or manufacturing of the finished goods. In respect of the goods like Lightening Arrester, the same falls under Chapter 85 and is eligible for Cenvat Credit as capital goods. 9. He relies on the case law of Jawahar Mills Ltd. Vs. CCE, 1999 (108) ELT 67 (Tri.). In case of Excavator, he submits that it is a specific capital goods falling under Chapter 84 and the same is used for segregating the emerging slag. Thus this equipment is essential for their manufacturing process. Finally, he submits that so long as the goods received are inputs or capital goods and they are used within the factory of manufacture, the Cenvat Credit cannot be denied on them. He relies on the case law of Singh Alloys & Steel Ltd.-1993 (66) ELT 594, Calcutta High Court and Hindalco Industries Ltd. Vs. CCE-1996 (88) ELT-519 (New Delhi-CEGAT). 10. He further submits that the Commissioner has not given proper consideration for the Certificate issued by the Chartered Engineer and holds that the same has been procured only in 2009. The Counsel submits that when the Cenvat Credit was being taken during the period 2005-06 to 2007-2008, no query whatsoever was raised by the Department only when the Department took up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used the Appeal papers and documents placed before us. 15. From the Order passed by the Adjudicating Authority, it is observed that he has been guided by the Larger Bench decision in the case of Vandana Global. The Appellant has provided proper Chartered Engineer's Certificate clearly specifying the usage of Steel items in various capital goods. The Tribunals/Courts have been consistently holding that when the capital goods that are embedded are required for manufacture of the finished goods, Cenvat Credit cannot be denied. Some of the important decisions of the Tribunals and Courts are as under:- (i) CCE, Trichy Vs India Cements Ltd. 2004 (175) ELT-476 (Tri.-Chennai) 6. We have considered the rival submissions and the judgments pressed into service and are of the considered opinion that rebar coils, CTD bars, TOR steel, joists and cement have been used for construction of the plant comprising of concrete foundations, concrete silos for storing raw materials, clinker and cement, Pre-heater Tower Structure, Load Centres, etc. The appellantassessee have emphasized and confirmed that they had not availed of the credit of duty in respect of that quantity of Rebar Coils, CTD Bars, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts, spares and accessories of the goods specified at Rule 2(b)(i) & (ii) are also defined as "Capital Goods". The Rule 2(b)(i) & (ii) are as follows :- "(b) "capital goods" means - (i) All goods falling under Chapter 82, Chapter 84, Chapter 85, Chapter 90, heading No. 68.02 and sub-heading No. 6801.10 of the First Schedule to the Tariff Act; (ii) Pollution control equipment.' A close reading of above provisions reveals that the classification of components, spares and accessories is not relevant. What is relevant is whatever we call components, spares and accessories should be the goods specified at (i) & (ii) above. In the present case, the appellant is a manufacturer of drugs who uses various machineries which may fall under any one of the Chapters 82, 84, 85 & 90. All these machineries have to be properly supported and connected. Hence, going by the use to which the impugned goods were put, we are convinced that they are all components, spares and accessories specified at (i) & (ii) above as defined under Rule 2(b) of the Cenvat Credit Rules.[Emphasis supplied] (iii) Ashok Ispat Vs. CCE, Raipur-2009 (244) ELT-482 (Tri.-Delhi) 3. I have carefully considered the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner, only if the stock of inputs as such or in process is also transferred. Transfer of balance in accounts only, without transfer of physical stocks of input lying as such or in process will not be permissible. The rules do not indicate or stipulate a correlation between the transfer of an amount of credit with physical transfer of such input as such or in process. The order of the Commissioner placing limits on the transfer of the amount in accounts, relating to the physical quantum of inputs being transferred, therefore cannot be upheld. The contention of the ld. Advocate for the appellant, that sale merger/amalga-mation of transfer contemplating in Rules 57A (20)/(21) and 57S(5)/(6) of Central Excise Rules, 1944 are not sale merger/amalga-mation etc. of a Company but relating to a factory and in this connection reliance on the case of Orient Ceramics (P) Ltd. v. CCE - 2001 (130) E.L.T. 520 in Para 12 is well founded. Similarly the reliance in the case of K.M. Sugar Mills - 2001 (133) E.L.T. 567 would cause direction of the credit in balance to be transferred. In view of this, no merits are found to uphold the Commissioner's order. The same is required to be set aside and appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Rules. We note that there is no further dispute regarding availability of credit. [Emphasis supplied] 17. In view of the above, we find that the Adjudicating Authority has confirmed the demands without any proper verification. Since the issue is squarely covered by the cited case law, we set aside the impugned OIO on merits. 18. We are also in agreement with the Appellant that in the present case, no evidence has been brought in by the Revenue to fortify their allegation of suppression on the part of the Appellant. The Appellant has filed their Monthly Returns properly declaring the Cenvat taken by them on various counts. The Tribunals have been consistently holding that when the issue is that of interpretation, suppression clause cannot be invoked against the assesse. Therefore, the assesse could be having bonafide belief that they are eligible for Cenvat Credit. Accordingly, we hold that the demand in respect of the extended period is required to be set aside on account of time bar also. We do so. 19. We allow the Appeal both on merits as well as on account of limitation also. The Appellant would be eligible for consequential relief, if any, as per law. ( Order was pronoun ..... 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