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CCE & ST, Bhubaneswar V/S Stock Ferro & Mineral Indus. Pvt. Ltd.

    Excise Appeal Nos. 71224-71225 of 2013 (Arising out of Order-in-Appeal No. BBS/EXCUS/APP/21-22/2013 dated 28.06.2013 passed by the Commissioner (Appeals) Central Excise, Customs & Service Tax, Bhubaneswar) and Final Order Nos. FO/A/7700-77005/2017

    Decided On, 28 August 2017

    At, Customs Excise Service Tax Appellate Tribunal East Zonal Bench Bench, Kolkata

    By, MEMBER

    For Petitioner: S. Mukhopadhyay, DR

Judgment Text

1. List revised. None is present for the assessee-Respondents nor there is any adjournment application on record. In the absence of learned counsel for the assessee-Respondents, we proceed to decide the appeals on merit.

2. Both the present appeals are filed by the Department against the Order-in-Appeal No. BBS/EXCUS/APP/21-22/2013 dated

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28.06.2013 passed by the Commissioner (Appeals) Central Excise, Customs & Service Tax, Bhubaneswar. The period in dispute is February 2008 to April 2008.

3. The brief facts of the case are that, during the period under consideration, the assessee-Respondents were engaged in the manufacture of Ferro Silicon Manganese and Ferro Manganese. They had claimed the Cenvat Credit on Plates, Channels, Chequered Plates, Beams, HR Steels Plates, Flange Beams, Angles and MS Angles/Channels etc., but the same was disallowed by the lower authorities. However, the Commissioner (Appeals) has allowed the same. Being aggrieved, the Department has filed the present appeals.

4. With this background, we have heard Shri S. Mukhopadhyay, learned DR for the Department and perused the record.

5. After hearing the learned DR for the Department and on perusal of the material available on record, we find that an identical issue has come up before this Tribunal in the case of Singhal Enterprises Pvt. Ltd. Vs. Commissioner of Customs & Central Excise, Raipur : 2016 (341) ELT 372 (Tri.-Del), wherein it was held that:

15. We find that the controversy can be laid to rest by making a reference to the decision of the Apex Court in the case of CCE, Jaipur v. Rajasthan Spinning & Weaving Mills Ltd: 2010 (255) E.L.T. 481 (S.C.), wherein the Hon'ble Supreme Court has considered an identical issue of steel plates and MS channels used in the fabrication of chimney for diesel generating set. The credit stands allowed in the light of Rule 57Q of the erstwhile Central Excise Rules, 1944. In the said judgment, the Apex Court has referred to the user test evolved by the Apex Court in the case of CCE, Coimbatore v. Jawahar Mills Ltd : 2001 (132) E.L.T. 3 (S.C.), which is required to be satisfied to find out whether or not particular goods could be said to be capital goods. When we apply the user test to the case in hand, we find that the structural steel items have been used for the fabrication of support structures for capital goods. The appellants have argued that the various capital goods, such as, kiln, material handling conveyor system, furnace, etc. cannot be suspended in mid-air. They will need to be suitably supported to facilitate smooth functioning of such machines. It is obvious that the structural items have been suitably worked upon for this purpose. Accordingly, the goods fabricated, using such structurals, will have to be considered as parts of the relevant machines. The definition of Capital Goods includes, components, spares and accessories of such capital goods. Accordingly, applying the User Test to the facts in hand, we have no hesitation in holding that the structural items used in the fabrication of support structures would fall within the ambit of Capital Goods as contemplated under Rule 2(a) of the Cenvat Credit Rules, hence will be entitled to the Cenvat credit.

6. By following our earlier decision (supra), we find no reason to interfere with the impugned order and the same is hereby sustained along with the reasons mentioned therein.

7. In the result, both the appeals filed by the Department are dismissed

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