TaxTMI 
TaxTMI 
2024 (8) TMI 310
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....2), MS Rounds (72149990), SS Pipes and Tubes (73069090), MS Plates (72111410), Choard Plates (72088210). The Department did not find these goods as eligible for credit under the definition of capital goods, primarily on two grounds: (i) the said goods are not getting covered within the definition of capital goods under Rule 2(a)(A) o Cenvat Credit Rules 2004 (CCR) - by either not being specified by way of their tariff sub-headings or by finding place in their categories mentioned under Rule 2(a)(A), and (ii) Considering the usage submitted by assessee for these goods, Department felt that in view of Board Circular dated 15.01.2012 issued under Section 37(B), these items having been used as parts in construction or in furnace and other equipments attached to earth which cannot be considered as excisable goods, and therefore these goods used for making furnace and other equipments leading to change in the identity from parts to such equipments attached to earth. The Department also invoked the provisions of Rule 9(5) of Cenvat Credit Rules which casts burden on the assessee to prove the admissibility of the credit taken by him. 3. On adjudication, the Original Adjudicating Autho....
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....gal position, I agree with the findings of the Adjudicating Authority wherein it has been held that the appellant is required to justify and prove the usage of the material and mere Charted Engineer's Certificate (Which incidentally in this case proves the allegation of the department, as discussed above) is not sufficient. The facts in the present case clearly bring out that the ratio of the judgment cited by the appellant have been accepted by the Adjudicating authority however the facts of the case required sufficient evidence to determine the usage of goods. It is more relevant as a definition of 'input' under Cenvat Credit Rules, 2004 was amended in 2009 so as to exclude "but shall not include cement, angles, channels Centrally Twister Deform Bar (C.T.D.) or Thermo Mechanically Treated bar (TMT) and other items used for construction of factory shed, building or laying of foundation or making of structures for support of capital goods." I do not find any infirmity in the order of the Adjudicating Authority." 5. Learned Advocate for the appellant reiterates the submissions made in the appeal memorandum and also points out that the matter is no longer res-integra in view of earl....
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....ase of M/s Bajaj Hindustan Ltd., Vs Union of India & Others [2013 (295) ELT 20 (ALL)], Commissioner of Central Excise and Service Tax, Haldia Vs M/s Emami Agrotech Ltd., [2022 (1) TMI 764 (CAL-HC)], Hon'ble Karnataka High Court in the case of CCE, Aurangabad Vs Toyota Kirloskar Motors Ltd., [2009 (12) TMI 529 (KARHC)]. 7. Heard both the sides and perused the documents. 8. The main issue to be decided in this case is as follows: (i) whether the case is no longer res-integra in view of the order dated 09.05.2022 passed by the Tribunal in their own case (ii) whether these items are covered within the definition of capital goods or otherwise (iii) whether the Chartered Engineer's certificate submitted by the appellant sufficient to discharge the responsibility placed on appellant under Rule 9(5) of CCR 2004. 9. I have perused order dated 09.05.2022 in the Final Order No. A/30058/2022, wherein, the Tribunal had considered similar matter in respect of same appellant for the period September 2010 to July 2012 and one of the main observations of the Tribunal was that no cogent findings have been given by the Learned Adjudicating Authority in respect of nonacceptance of Chartered E....
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....pital goods". Admittedly, the declaration of capital goods was under different rules during the said period and apparently because of that it was claimed as "input" and not as capital goods. The format of Chartered Engineer's certificate perused by the Tribunal was also different than the one relied upon by the appellant in present appeal. 12. Therefore, I find that the judgment dated 09.05.2022 cannot be applied in totality for deciding the present appeal where facts and submissions are slightly different as well as the rule position is also different. Therefore, this ground of the appellant is not tenable. As far as the second issue, whether these items can be considered as capital goods or not, I find that in the light of the facts stated in the show cause notice as also in terms of the provisions under Rule 2(a)(A) of CCR, these items, per se, could be considered as capital goods, if they are used as components etc., of capital goods specified at Rule 2(a)(i) and (ii). It is not the case, nor disputed by Department that various capital goods were fabricated/manufactured at site within the factory and that they were not falling under Chapter 82, 84, 85, 90 etc., or Pollution Co....
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....arently, what is being now disputed is whether the usage criteria has been clearly satisfied to consider as component. Thus, impugned items, except when used for making foundation etc., would fall within the definition of capital goods under category 2(a)(A)(iii). 13. The third issue which needs deliberation is whether in the given facts of the case, appellant has been able to specify the usage of such components in the capital goods fabricated within the factory of production or otherwise. The appellants have relied solely on one document in support of their usage in capital goods and that is Chartered Engineer's certificate issued by Shri R K L Prasad wherein various details of credit taken and its utilisation in the main equipment have been indicated. This certificate, interalia, also links the quantity of impugned goods to the main equipment and also describes the uses of main capital equipment in making the final excisable goods. What is however not forthcoming from the certificate is the item's descriptions describing some of the very basic specifications like size, quality standard/parameters etc. From the description given by the Chartered Engineer, it is also not clear as....
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....the input and capital goods in which the relevant information regarding the value, duty paid, CENVAT credit taken and utilized, the person from whom the input or capital goods have been procured is recorded and the burden of proof regarding the admissibility of the CENVAT credit shall lie upon the manufacturer or provider of output service taking such credit. Thus, the burden of proof relating the admissibility of Cenvat Credit shall lie upon the manufacturer. In this case, they have not clearly discharged this burden which was invoked in the show cause notice itself. It has been clearly held and upheld that mere production of Chartered Engineer's certificate was not sufficient to discharge this burden. Learned DR has relied on certain judgments in the case of CCE & ST, Haldia Vs Emami Agrotech Ltd., where the Hon'ble High Court of Calcutta, interalia, held that onus is on the part of the assessee to produce documents to show that the certificate has been issued upon verification of all details, which has not been done by the assessee. There was no record to rely upon by the Tribunal which corroborates the certificate issued by the Chartered Accountant. Similarly in the case of C....