TaxTMI 
TaxTMI 
2017 (10) TMI 613
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....pig iron and unmachined castings falling under Chapter 72 and 73 of the First Schedule to the Central Excise Tariff Act, 1985. They are availing the CENVAT credit on capital goods, inputs and input services under the provisions of the CENVAT Credit Rules, 2004. It was noticed during the course of scrutiny of ER-1 returns and verification of the documents that the appellants have availed CENVAT credit on MS angles, channels, joists, beams, etc., during the period from 02/2009 to 07/2009 and these items were used for manufacture of capital goods, viz., fabrication / manufacture of hot blast stoves. It appeared that the credit availed on the said items is irregular inasmuch as these items are neither inputs nor capital goods. As the appellants....
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....mitted that the Revenue at this stage cannot raise the objection that the said material was not used for fabrication of hot blast stove and the Commissioner (A) has wrongly invoked the user test evolved by the Supreme Court in the case of Jawahar Mills Ltd.: 2011 (132) ELT 3(SC). He also submitted that the show-cause notice has specifically stated that the assessee had used MS angles, plates, joists, channels, beams for fabrication of hot blast stove and the assessee in their reply has submitted that the hot blast stove are classifiable under Chapter Heading 8414 5930 of CETA, 1985 which has not been controverted by the Revenue. He further submitted that the inputs used for fabrication / manufacture of capital goods which are further used i....
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....he case of JSW Steel Ltd. decided on 13.2.2017 where the issue was identical has observed in para 8 to 10 as under: "8. To decide the issue whether these manufacturing facilities are to be considered as immovable property or as capital goods, it is useful to refer to the clarification issued by CBEC vide order No.53/2/98-CX dated 2.4.1998 in which the excisability of plant and machinery assembled at site has been clarified. The Board has referred to the decision of the Hon'ble Supreme Court in the case of Sirpur Paper Mills Ltd. [1998 (97) ELT 3 (SC)] and has prescribed the following broad criteria to be satisfied for considering the plant and machinery assembled and erected at site as excisable. i. The final product is distinct....
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....f the type such as building or tree which get fixed to the earth. We find that both blast furnace and coke oven batteries cannot be considered to be in the same category as building or tree. In view of the above discussions, it emerges that both manufacturing facilities are to be considered as capital goods. 10. We may look at the situation from another perspective. We are not deciding the excisability and chargeability to excise duty of blast furnace and coke oven batteries. There is no doubt that the structural steel items, which are duty paid, have been used in the fabrication of these two structures. Rule 2(a) of CCR, 2004 defines capital goods. It includes all goods falling under Chapter 82, 84, 85, 90, etc. The definition of capita....
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.... 16.2.2017 dismissed the appeal of the Revenue. He further submitted that the issue involved in the present appeal is the same as was involved in the earlier appeal filed by the Revenue, which was dismissed. 6. On the other hand, the learned AR defended the impugned order and submitted that the disputed items were used for fabrication of support structure for plant and machinery which are embedded to the earth and becomes immovable property and therefore, not admissible for CENVAT credit and the assessee has wrongly availed the CENVAT credit on these items which was detected during the course of audit. He further submitted that the assessee has failed to prove that he has used these items for fabrication of hot blast stove. He also submi....