2017 (4) TMI 143

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....is that the appellant is a manufacturer of V.P. sugar and molasses, whether they are entitled to Cenvat credit on various items like Plates, Shape & Section, MS Angles, GP Sheet, HR Coil, CR step, MS Channels, Paints, Welding Electrodes etc. procured and used by the appellant as inputs or in manufacture of capital goods, which have been further used in their factory of production for manufacture of Excisable goods. 3. The detail of dispute and the period is as follows: Sl. No. Appeal No. & Date (Commissioner Appeals) O-I-O No. and date period Amount Duty (Rs.) Penalty (Rs.) 1. 85-CE/APPL/MRT-II/2009 dt. 08.06.2009 34/Addl.Commr./M-II/09 dt. 27.03.2009 January-06 to June-06 27,94,974/- 2,00,000/- ....

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....nd the proposed demands confirmed with penalty. Being aggrieved, the appellant preferred appeal before learned Commissioner (Appeals) who vide the impugned order, was pleased to reject the appeal, recording the finding that the goods in question do not fall under the category of capital goods as provided in Cenvat Credit Rules nor these items can be treated as input for capital goods, because the appellants had not produced any evidence that out of those materials of Chapter 72 of CETA, they had manufactured capital goods. It was further observed that, had the appellant manufactured capital goods out of the aforementioned materials, then in terms of Rule 12 of the Central Excise Rules, 2002, it should have been reflected in the monthly ER-1....

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.... supporting structures fabricated in the factory of production which are essential to support the machinery which are used for manufacture of Excisable goods. The learned Counsel further states that prior to amendment in Rule 2(k) of CCR by introducing Explanation-II to Rule 2 (k) with effect from 07/07/2009, to exclude Cement, Angles, Channels, CTV, TMT bars and other items used for construction of factory shed, building or laying of foundation or making of structures for support of capital goods, cannot be held to be retrospective. This has been held in the case of Ultratech Cement Ltd Vs CCE & ST reported at 2017-TIOL-91-CESTAT-Delhi. Accordingly, the learned Counsel prays for allowing the appeal. 6. The learned A.R. for revenue relie....