TaxTMI 
TaxTMI 
2017 (1) TMI 1742
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....e manufacture of the final products -Cement- in their factory. The credit stands disallowed both, by the Original Authority as well as by the Commissioner (Appeals) in the impugned order. 2. With the above background, I heard Smt. Rinki Arora, Ld. Advocate appearing for the appellant as well as Sh. M.R. Sharma, Ld. AR for the respondent. 3. The submission of the Ld. Counsel is that Cement and TOR Steel Bar have been used in fabrication/repair and maintenance of platform/supporting structures of capital goods. She referred to the definition of inputs under Rule 2(k) of the Cenvat credit Rules, 2004 and submitted that the Explanation 2 under the definition of inputs has been amended with effect from 07.7.2009 vide Notification No. 16/2009-C....
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....that these items have been used for Civil Construction and cannot be considered as used for fabrication of capital goods. Accordingly, he prayed that the impugned order be upheld. 5. The dispute is with reference to whether Cenvat credit can be allowed on Cement and TOR Steel items used for construction of foundation on which capital goods such as plant and machinery as well as power plant are installed. The claim made by the appellant is that these are used for manufacture of capital goods; that the support constructed, using the above materials is nothing but part of capital goods. 6. I find that an identical issue came before the Division Bench of this Tribunal and was decided by Final Order No. 27.12.2016. The finding of the Tribunal ....
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....machinery is placed on these structures does not make these civil structures as components or accessories of said machinery. Similarly, using RCC various structures are created by the appellants for passage of raw material and storage of intermediate product. The usage of these civil structures in these process by itself will not make them parts and machinery for the purpose of identifying the cement and TOR steel as inputs used in the manufacture of capital goods. Such claim by the appellant is factually and legally unsustainable. 6. We note TOR steel is nothing but Cold Twisted Defermed (CTD) steel bars. CTD and Thermo Mechanically Treated (TMT) bars are basically used in civil construction work with cement for creation of permanent st....
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.... used cenvatable inputs in the fabrication or manufacture of any capital goods. The same reasoning applies to TOR Steel which is used alongwith cement in creating these structures. Accordingly, we hold that the credit on cement and TOR steel availed by the appellant is not justifiable under Cenvat Credit Rules, 2004. 8. We note that reliance placed by the appellant on the decision of Hon'ble Supreme Court in Rajasthan Spinning & Weaving Mills Ltd. (supra) is not appropriate for cement and TOR Steel. The Hon'ble Supreme Court applied "user test" to decide on the eligibility of MS Plates and Channels used in fabrication of chimney for generator. Here in the present case, we note that the cement and TOR steel, which are basically constructio....