TaxTMI 
TaxTMI 
2010 (9) TMI 614
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.... Commissioner, Moradabad by his order dated 30-11-2006 had disallowed the cenvat credit in relation to the plates/hot strip plates, channel & angle/Plate, shape & section/joist, M.S. bar and H.R. coil which was sought to be availed by the appellants and had confirmed the demand of Rs. 2,74,939/- alongwith interest thereon and has imposed penalty of Rs. 2,5,000/- under Rule 15 of the Cenvat Credit Rules, 2004. 3. The appellants are engaged in manufacture of industrial spirit, denatured spirit and absolute alcohol classifiable under chapter heading No. 22.04 of the schedule to the Central Excise Tariff Act, 1985. They have been availing the facility of cenvat credit on the inputs and the capital goods in terms of Rule 3 of Cenvat Credit....
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.... equipments in the appellant's factory but were also used for making pipeline and various other equipments like storage tanks. There is nothing on record to show as to how much of quantity of the items was used for such purposes and how much was used for the purpose of fabrication of various other items and, therefore, the authorities below without ascertaining the same would not be denied the credit in relation to the duty paid on all the items. The appellants had taken a specific defence in reply to the show cause notice that some of the items were also used for making pipelines and other equipments like storage tanks and, therefore, it was necessary for the authorities below to enquire into the matter and ascertain as to the quantity of ....
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....horities below to enquire into the said aspect and to ascertain whether some of the items or part of the items were used for making pipelines and other equipments like storage tank and based on such ascertainment to decide about entitlement of the appellants to avail the cenvat credit cannot be accepted. Once the defence was raised by the appellants, it was essentially for the appellants to lead necessary evidence in that regard. Mere raising of plea in answer to the show cause notice does not by itself mean the proof of correctness of such plea. When the plea relates to certain factual aspect, it is absolutely necessary for the person raising such plea to make the same good by producing sufficient evidence in support of such plea. Undisput....
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.... the said judgment, the court noted the stand of the learned Additional Solicitor General, appearing for the Revenue, to the effect that the question whether an item falls within the purview of "capital goods" would depend upon the user it is put to". 9. In Vandana Global case the Larger Bench while dealing with the issues whether the term "capital goods" can include plant, structures embedded to earth whether the goods like angles, joists, beam, channels, bars, flats which go into fabrication of such structures can be treated as inputs in relation to their final products as inputs or capital goods, or none of the above and whether the credit can be allowed in respect of goods like angles, joists, beam, channels, bars, flats which go ....
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....lation to the manufacture of excisable goods. Hence, 'capital goods' defined in the Cenvat Credit Rules in the context of providing credit of duty paid, have to be excisable goods. Whether a particular plant or structure embedded to earth can be considered as excisable goods or not has to be determined in the light of the decisions of the Hon'ble Supreme Court on the issue, which is no longer res integra. (b) Goods like cement and steel items used for laying 'foundation' and for building 'supporting structures' cannot be treated either as inputs for capital goods or as inputs in relation to the final products and therefore, no credit of duty paid on the same can be allowed under the Cenvat Credit Rules for the impug....