2016 (11) TMI 229

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....n setting up of expansion project of Cement Plant and Captive Thermal Power Plant in the factory. The various iron and steel items such as M.S. Plates, M.S. Angles, Pipes, M.S. Rails, etc. were purchased and supplied to the contractor for Expansion Project as well as execution of Thermal Power Plant. The Original Authority denied the credit holding that the iron and steel items received by the appellants were used in the manufacture of storage tank, boilers, hoppers, ducts, etc., which are embedded to earth and became immovable property and hence, not goods. Since these are not excisable items, capable of being bought and sold in the market, therefore, credit is not eligible to them. Reliance was placed on the decision of th`e Tribunal in t....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....orts & Special Economic Zone Ltd. 2015 (39) STR 726 (Gujarat) held that exclusion made for iron and steel items used in support structures cannot be given retrospective effect. The demand was also contested on the question of time bar as the issue involved is purely of interpretation of provisions and no malafide can be attributed to the appellant to invoke longer period. 6. Ld. AR reiterating the findings of the lower authority submitted that iron and steel items falling under Chapter 72 and 73 can neither be considered as inputs or capital goods. They are not used in the manufacture of any specified capital goods inside the appellan s unit. Further, fabrication of immovable structures, which are not goods, cannot be considered for cenvat....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....abrications are required. Without such fabrication, the hoppers cannot be put into use. Here, it is not tenable to hold that the various iron and steel angles, channels, etc. used in conjunction with hoppers, are pure civil structures and cannot be considered as accessories or components of such hoppers. Such argument will be factually and legally devoid of merits. 9. It is relevant to note that the Hon'ble Supreme Court in Rajasthan Spinning and Weaving Mills Ltd. 2010 (255) ELT 481 (SC) applied user test to determine the eligibility of cenvat credit on steel items used for fabrication of chimney for the power generators. It was held that the actual use of such steel items will determine its nature. The ratio evolved by the Hon'ble Suprem....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....anation-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 (0....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....arts 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". 11. We find much force in the plea of the appellant on the ground of time bar also. The demand in the present case was issued on 10.08.2008 covering a period March, 2007 to March, 2009 invoking extended period. As can be seen from the discussion above, the issue relating to cenvat credit eligibility on....