2018 (9) TMI 1987

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....d capital goods on payment of Central Excise Duty and claimed Cenvat Credit thereon. The Show Cause Notice dated 6.11.2006 was issued alleging irregular availment of credit. The Adjudicating Authority disallowed Cenvat Credit amounting to Rs. 7,26,888/- and ordered for recovery of the same from the appellants, M/s. OCL Iron & Steel Limited, along with interest and imposed equal amount of penalty under Rule 14 of the Cenvat Credit Rules, 2004. He, however, allowed the Cenvat Credit amounting to Rs. 23,67,643/-. The Department filed an appeal before the lower Appellate Authority who set aside the Order-in-Original dated 29.02.2016 and allowed the appeal. The Assessee is in appeal before the Tribunal against the impugned order. 2. The Learn....

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....iable under Chapter 72 during the period October, 2005 to March, 2006 and claimed Cenvat Credit amounting to Rs. 25,29,181/- treating them as 'input' under Rule 2 read with Rule 3 of the Rules. It is further stated that they purchased 195.090 MT of Iron and Steel materials such as HR Plates, Sheets, Plates, MS Rod, MS Round and TMT Rod etc. all classifiable under chapter 72 which were used for making of Patching Formers (ordinarily known as Melt out Pharma) for Induction Furnace, Formers for Ladles, Slag Separator/ Steer Instrument (also known as Deslagging Spoon) in the process of manufacture of M.S. Angles on which they claimed Cenvat Credit of Rs. 5,63,350/- treating them as 'inputs' in terms of the Rule 2(k) of the Rules. He relied upon....

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....g which prevents the possibilities of molten metal getting into the Crucibles coils/outer shell of ladle and thus damaging it. The said materials are used in the process of manufacture of M.S. Billets. The Appellant further states that 'Slag Separator (Deslagging Spoon) manufactured out of M.S. Round/Rod, is used for deslagging of molten materials in the process of manufacture of M.S. Billets i.e. for breaking and removal of accumulated Slag Layer floating over the molten metal while being tapped out of the Induction Furnace. The breaking / removal of slag is required very often for releasing the gas accumulations under the surface of the molten material to avoid busting of red hot molten layer of slags causing accident. The process of brea....

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....5) E.L.T. 481(S.C.), wherein the Hon'ble Supreme Court has considered an identical issue of steel plates and MS channels used in the fabrication of chimney for diesel generating set. The credit stands allowed in the light of Rule 57Q of the erstwhile Central Excise Rules, 1944. In the said judgment, the Apex Court has referred to the "user test" evolved by the Apex Court in the case of CCE, Coimbatore v. Jawahar Mills Ltd. 2001(132)E.L.T. 3 (S.C.), which is required to be satisfied to find out whether or not particular goods could be said to be capital goods. When we apply the "user test" to the case in hand, we find that the structural steel items have been used for the fabrication of support structures for capital goods. The appellants ha....

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.... structures embedded to earth? (B) Whether the goods like angles, joists, beams, bars, plates, which go into fabrication of such structures are not to be treated as 'input' used in relation to their final products as inputs for capital goods, or none of the above? (C) Is the amendment brought in CENVAT Credit Rules, 2004 as per Rule 2 of the CENVAT (Amendment) Rules, 2009 retrospective in nature considering is it clarificatory to be applied to all matters which arise before 7-7-2009, the date of commencement of the CENVAT (Amendment) Rules, 2009 : hereinafter referred to as 'Amendment Rules'. 5. The impugned order of the Tribunal had come up for consideration before different High Courts either cited as precedent ....