TMI Blog2024 (4) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... wed. - HON'BLE DR. D. M. MISRA , MEMBER ( JUDICIAL ) And HON'BLE MSR R BHAGYA DEVI , MEMBER ( TECHNICAL ) Mr. M. S. Nagaraja and Mr. B. Venugopal , Advocates for the Appellant Mr. H. Jayathirtha , Superintendent ( AR ) for the Respondent ORDER PER : DR. D. M. MISRA These two appeals are filed against respective Orders-in-Original passed by the learned Commissioner of Central Excise, Belgaum. Since common issues involved, both these appeals are taken up together for hearing and disposal. 2. Briefly stated the facts of the case are that the appellants are manufactures of Sponge Iron, MS Billets and TMT bars falling under Chapter 73 of Central Excise Tariff Act, 1985. They have availed cenvat credit on various inputs viz. Angles, Channels M.S. Plates, beams etc. during the period April 2005 to March 2006 (appeal No.E/1427/2011) amounting to Rs.68,93,533/- and for the period March 2009 to June 2009 (appeal No.E/1712/2011) amounting to Rs.1,29,19,769/- and Rs.6,21,670/-. Consequently, show-cause notices were issued to them for recovery of the credit with interest and penalty. On adjudication by the learned Commissioner, the demand of Rs.59,25,932/- was confirmed for the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titled to avail cenvat credit on the MS angles, MS channels, MS beams, MS joists, MS plates etc. which were used in the fabrication of various machineries, support structures, platforms for machineries and equipments etc. used in the factory. 7. Undisputedly, the appellants during the relevant period used the aforesaid inputs in their factory in the fabrication / manufacture of various equipments, machineries, plants etc. and support structures holding the capital goods. The learned Commissioner in the impugned order following the judgment of the Larger Bench of this Tribunal in Vandana Global Ltd. s case decided the issue against the appellants holding that credit is not admissible on the aforesaid inputs used in the fabrication of various capital items. 8.1. We find that the issue is no more res integra and covered by the judgement of Hon ble Chhattisgarh High Court in Vandana Global s case, whereunder it is observed as follows:- 4. In the light of the contents of the impugned order of the Tribunal and submissions of the assessee and the Revenue following substantial questions of law are formulated for consideration : (A) Whether the terms capital goods excludes the structures em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rules conferred by clause (xvi) of sub-section (2) shall include the power to give retrospective effect to rebate of duties on inputs used in the export goods from a date not earlier than the changes in the rates of duty on such inputs. Though the power to make rules include the power to give retrospective effect, while doing so the provision under consideration is neither made retrospective nor could it be treated as one. 8. We are in complete agreement with the ratio of Mundra Ports (supra) and M/s. Thiruarooran Sugars (supra) on all fours. 9. Resultantly, we answer the questions formulated in these appeals in favour of the assessees and against the Revenue. 8.2. It followed the judgment of Hon ble Madras High Court in the case of Thiru Arooran Sugars (supra) whereunder it is observed as follows : - 43. As would be evident from the aforesaid extract, in Rajasthan Spinning Weaving Mills Limited case, the Court relied upon the user test, enunciated, in its earlier judgment rendered in : Jawahar Mills Limited case. Clearly, the Court held that steel plates and MS Plates, i.e., structurals used in the fabrication of the chimney, which were an integral part of the diesel generating s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T 737 (Tri. LB)] held as follows:- 8. Applying the user test of capital goods as enunciated by the Hon ble Supreme Court in the case of Rajasthan Spinning Weaving Mills (supra), the Hon ble Madras High Court in the case of India Cements Ltd., reported in 2012 (285) E.L.T. 341 (Mad.), 2014 (305) E.L.T. 558 (Mad.), 2014 (310) E.L.T. 636 (Mad.) and 2015 (321) E.L.T. 209 (Mad.) has extended the Modvat benefit on Cement and steel items, considering the same as capital goods under Rule 57Q of the erstwhile Central Excise Rules, 1944. Since, said rule is pari materia with the present Rule 2(a) of the CCR, 2004, the disputed goods, in the present case, should be considered as capital goods for the purpose of the Cenvat benefit. 9. On perusal of definition of input extracted above, it would reveal that all the goods (excepting light diesel oil/high speed diesel oil and motor spirit) are considered to fall under such definition, when used in or in relation to manufacture of final products , whether directly or indirectly, and whether contained in the final product or not. The only condition required to be fulfilled is that the goods must be used within the factory of production. Further, Exp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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