TaxTMI 
TaxTMI 
2016 (11) TMI 1179
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....es, Plates, etc. for fabrication/erection, commissioning of various capital goods like ducts, hoppers, chutes, packing plates, air slides, duct support, bucket elevator tower, fuel and limestone handling equipment, cable tray, storage silo for fly ash, pipe support. These capital goods are part of various sections of cement plants like raw mills, limestone crusher, coal mill, kiln, pre-heater, etc. This aspect is not disputed. The proceedings were initiated against the appellant to deny cenvat credit on these iron and steel items on the ground that these items were used for the fabrication or manufacture of items, which have become immovable structures. The case was adjudicated by the Commissioner vide order dated 31.01.2012. It was recorde....
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....mber of cases by the Tribunal, High Courts and Supreme Court. We note that in the present case, the main thrust of the contention by the Revenue to deny the credit is that the resultant fabricated items are immovable structures and hence, cannot be considered as goods and hence, the credit on these steel items used in such immovable structures cannot be allowed. We find that the immovability or otherwise of the resultant capital goods is not a criteria stipulated in the cenvat credit for consideration. Even otherwise, these various steel items were put to use in creation of various structures/accessories during a process of cutting, bending, etc. As held by the Tribunal in the case of Mahindra & Mahindra Ltd. 2005 (190)ELT 301 (Tribunal-LB)....
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....hat the structural items used in the fabrication of support structures would qualify to be considered as parts of relevant machinery and fall within the ambit of capital goods in terms of Rule 2(a) of the Cenvat Credit Rules, 2004. Similar ratio has been followed by the Hon'ble Punjab & Haryana HighCourt in the case of Pioneer Agro Extracts Ltd. 2008(230) ELT 597 (P&H). 5. The amendment carried out in Rule 2(a) to exclude cement, angles, channels, CTD, TMT bars and other items used for construction of factory sheds, building, or laying of foundation or making of structures for support of capital goods cannot be held to be retrospective. The Hon'ble Madras High Court in the case of Thiru Arooran sugar 2015-TIOL-1734-HC-MAD-CX examined the a....
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....e Apex Court in the decision reported in 2010 (255) E.L.T.481 = 2010-TIOL-51-SC-CX (Commissioner of Central Excise Jaipur V. Rajasthan Spinning & Weaving Mills Ltd.) and in particular Paragraph Nos.12 and 13, wherein the Apex Court had applied the user test by following the Jawahar Mills's case, this Court held that steel plates and M.S.Channels used in the fabrication of chimney would fall within the ambit of "capital goods". In the face of this decision in the assessee's own case there being no new circumstance or decision in favour of the Revenue, we do not find any good ground to take a different view herein too. 10. As far as the reliance placed by the Revenue on the decision reported in 2011 (270) E.L.T.465 (SC) - 2011-TIOL-....
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..... Rajasthan Spinning & Weaving Mills Ltd.), the Revenue's appeal was also rejected. In the circumstances, this Civil Miscellaneous Appeal is dismissed. No costs. Consequently, C.M.P. No.16107 of 2005 is also dismissed." 9. From a perusal of the above said judgment, it is seen that there is no change in the circumstance and this Court had already considered the issue and held that the decision reported in - 2011-TIOL-73-SC-CX (Saraswati Sugar Mills V. Commissioner of Central Excise, Delhi - III) in Civil Appeal No.5295 of 2003 dated 02.08.2011 is distinguishable on facts. This Court applied the principles laid down in the decision reported in 2010 (255) E.L.T.481 = 2010-TIOL-51-SC-CX (Commissioner of Central Excise Jaipur V. Rajasthan ....