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Jaypee Sidhi Cement Plant V/S Commissioner of Central Excise and Service Tax

    Excise Appeal No. 51149 of 2017 (Arising out of Order-in-Original No. 08/COMMR/JBP/CEX/2017 Dated: 27.3.2017 Passed by the Commissioner of Customs, Central Excise & Service Tax, Jabalpur) and Final Order No. 57976/2017
    Decided On, 15 November 2017
    At, Customs Excise Service Tax Appellate Tribunal Principal Bench New Delhi
    By, MEMBER
    For Petitioner: Rahul Tangri, Advocate And For Respondents: R.K. Mishra, D.R.

Judgment Text

1. The present appeal is filed by the assessee-Appellants against the Order-in-Original No. 08/COMMR/JBP/CEX/2017 dated 27.03.2017 passed by the Commissioner of Customs, Central Excise & Service Tax, Jabalpur. The period in dispute is December 2009 to March 2010. In the present appeal, the dispute is regarding admissibility of Cenvat Credit on various iron and steel items used for fabrication of various capital goods/plants and machineries/support structures in the plant as capital goods and/or as inputs. The Department has not allowed the same. Being aggrieved, the assessee-Appellants have filed the present appeal.

2. With this background, we have heard Shri Rahul Tangri, learned counsel for the assessee-Appellants and Shri R.K. Mishra, learned DR for the Department.

3. After hearing both sides and on perusal of the material available on record, it appears that an identical issue has come up before the Tribunal in the case of Singhal Enterprises Pvt. Ltd. vs Commissioner Customs & Central Excise, Raipur -, wherein it was observed that:

"12. We have gone through the judgment of the Hon?ble High Court of Allahabad cited by the Revenue. We find that the Hon?ble High Court has considered the claim of Welding Electrodes under the definition of "Capital Goods? under Rule 2(a) of the Cenvat Credit Rules, 2004 and have come to the conclusion that the credit will not be allowable under this Rule. However, we find that the credit of duty paid on Welding Electrodes has been held allowable by several decisions of this Tribunal and hence the issue is no more res integra. We also find that several High Courts have also allowed such credit considering the same as allowable within the definition of "Input? under the Cenvat Credit rules. One such reference can be made to the decision of the Hon?ble High Court of Chhattisgarh in the case of Ambuja Cements Eastern Ltd. Vs Commissioner of Central Excise, Raipur, 2010 (256) ELT 690 (Chhattisgarh), wherein welding electrodes used for repair and maintenance purpose were also held to be cenvatable. Similarly, in the case of Hindustan Zinc Limited vs Union of India, 2008 (228) ELT 517 (Raj.), the Honble High Court Rajasthan allowed the Cenvat redit on the welding electrodes. By following said decision, we hold that the appellants are entitled to the credit on welding electrodes considering them as "Inputs?.

13. Now we turn to the question, whether credit is admissible on various structural steel items, such as, MS Angles, Sections, Channels, TMT Bar etc., which have been used by the appellants in the fabrication of support structures on which various capital goods are placed? The same stands denied by the lower authority. The learned DR has sought disallowance of the same by citing the decision of the Larger Bench in the case of Vandana Global Ltd. (supra) and other judgments. Further, he has brought to our notice and emphasized the amendment carried out in Explanation-II to Rule 2(a) which defines the term "Input? w.e.f. 07.07.2009. It has further been pleaded that the Cenvat Credit claimed for the period prior to this will be covered within the decision of the Larger Bench in the case of Vandana Global Ltd. (supra).

14. The Larger Bench decision in Vandana Global Ltd's case (supra) laid down that even if the iron and articles were used as supporting structurals, they would not be eligible for the credit. Considering the amendment made w.e.f. 07.07.2009 as a clarification amendment and hence to be considered retrospectively. However, we find that the said decision of the Larger Bench was considered by the Hon?ble Gujarat High Court in the case of Mundra Ports & Special Economic Zone Ltd., 2015 (04) LCX 0197, wherein it was observed that the amendment made on 07.07.2009 cannot be held to be clarificatory and as such would be applicable only prospectively.

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 vs Rajasthan Spinning & Weaving Mills Ltd : 2010 (255) ELT 481 (SC) , 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 vs Jawahar Mills Ltd : 2001 (132) ELT 3 (SC) , 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

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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. 16. In line with the discussions, we set aside the impugned order and allow the appeal." 4. By following our earlier decision (supra) and considering the totality of the facts and circumstances of the case, we set aside the impugned order and allow the appeal. In the result, the appeal filed by the assessee-Appellants is allowed.