TaxTMI 
TaxTMI 
2023 (8) TMI 1729
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.....S Plates, M.S Rails, etc. 3. The iron and steel were used in the factory by the appellants as under. Description of the impugned items Function of impugned items MS Beams and MS Joists Used in fabrication of columns which are further used in fabrication of Conveyor system, Hoppers, Silos etc., in the factory of the appellant. MS Angles, MS Channels Used for bracing for support of columns. MS Plates Used in the fabrication of Hoppers and Ducts. GI/GC Sheets Used for covering Conveyor system, Hoppers and Grinding Mills. MS Rails Used in the Railway Sidings. 4. The iron and steel items above are used in the factory premises of the appellant for fabrication and erection of support structures for installation of capital goods. The iron and steel items were subjected to various processes such as cutting, drilling, bending, welding, punching before they were made suitable for fabrication of structures. During the period 2008 to June 2009, they have received a total quantity of 5227.91 MTs of iron and steel items, which were used for fabrication of conveyor systems, silos, hoppers, etc., within the appellant's f....
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....his appeal. 5. The appellant in their appeal contended that the Commissioner in the impugned order held that; according to the tariff classification of Iron and steel items, the said goods do not fall under clause (i) to (vii) of Rule 2(a) of the Cenvat Credit Rules, 2004. Hence, the same cannot be called as capital goods. Further, reliance is placed on the decision of Supreme Court in the case of Vikram Cement to hold that an item will be classified as capital goods for the purpose of cenvat credit only, if the said item fall under the definition of the capital goods as prescribed under Rule 2(a); as per the explanation 2 to Rule 2(k), angles, channels, Centrally Twisted Deform bar (CTD) 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 are not the inputs. Further, the said explanation though inserted with effect from 07.07.2009, however, in view of the Larger Bench decision, the said explanation is retrospective in nature; Reliance has been placed on the decision of Vandana Global Ltd. Vs. CCE- 2010 (253) E.L.T. 440 (T-LB) and the subsequent decis....
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....the Iron and steel items used in the manufacture of capital goods. The show- cause notices adjudicated in the impugned Order-in-Original, had never relied upon the amendment to Explanation-2 to Rule 2(k) of Cenvat Credit Rules, 2004 as well as on the decision in the case of Vandana Global Ltd. The only ground in the show-cause notice was that the intermediate goods manufactured by the appellants are immovable and non-excisable and hence credit on the said iron and steel items is incorrect. Therefore, the impugned Order-in-Original to the extent it relies on the amendment to Explanation-2 to Rule 2(k) of the Cenvat Credit Rules, 2004 and reliance on the decision of Larger Bench in the case of Vandana Global Ltd., is beyond the scope of show-cause notice. It is well settled that the Order-in-Original beyond the scope of show-cause notice is bad in law and liable to be set aside on this ground. 5.4. The appellant contends that the iron and steel items under dispute satisfy the definition of 'inputs' inasmuch as they are used in or in relation to the manufacture of final products, whether or not contained in the final products, including those cleared along with final products. The ....
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....Singh Alloys & Steel Ltd. Vs. ACCE - 1993 (66) E.L.T. 594 (Cal.) The appellant has also cited the case of Rajasthan Spinning & Weaving Mills Ltd. - 2010 (255) E.L.T 481 (SC). 5.8. The learned Advocate during the hearing has submitted the decision of the Larger Bench in Vandana Global has been reversed by the High Court of Chattisgarh in Vandana Global Ltd. Vs. Commissioner of Central Excise & Customs, Raipur 2018 (16) G.S.T.L 462 (Chattisgarh) and was further upheld by Hon'ble Supreme Court in Commissioner Customs and Service Tax (CGST) Vs. M/s. Shri Nakoda Ispat Limited - 2018- TIOL-262-SC-CX-LB. 5.9. The learned counsel contended that the Hon'ble High Court of Chattisgarh in M/s. Vandana Global Ltd. has categorically held that Angles, Joists, Beams, Bars and Plates, which go into fabrication of structures embedded in the earth are eligible as inputs for capital goods, since they are used in relation to the final products as inputs. The question as to whether the resultant goods become part of immovable goods is irrelevant for the purpose of determining eligibility. The issue involved in the present matter is no longer res integra and the same has been decided by the Hon'....
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....tifiable capital goods and thereby credit could be availed on the same. b. Commissioner of Central Excise, Salem V. Madras Aluminum Co. Ltd. - 2017 (349) E.L.T. 133 (Mad.) 5.12. The learned Advocate contends that there was no suppression as the Department possessed complete information with respect to the present case. Further it is their submission that the filing of monthly returns indicate that the Department is well aware of the activities of the appellant and there was neither suppression of facts nor any intention to evade payment of duty. Further larger period cannot be invoked and retrospective amendments were made to the statute as no person can foresee further amendments and act, accordingly. Further the issue involves interpretation of provisions of Central Excise Rules and hence penalty under Section 11AC of the Central Excise Act, 1944 is not sustainable. Reliance is placed on the following decisions: a. Transafe Services Ltd. Vs. CCE, Haldia - 2017 (3) G.S.T.L. 445 (Tri.-Kolkata) b. Accenture Services Pvt. Ltd. Vs. CST, Mumbai-II - 2015 (40) S.T.R. 719 (Tri.-Mumbai) 6. Per contra, the learned Authorized Representative for the Revenue h....
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.... 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 or as relied upon by the Tribunal in different other matters. The Gujarat High Court in Mundra Ports & Special Economic Zone Ltd. - 2015 (39) S.T.R. 726 (Guj.) referred to the contents of the amendment, to the extent it is relevant for the purpose of this case and held as follows : "We do not find that amendment made in the Cenvat Credit Rules, 2004 which come into force on 7-7-2009 was clarificatory amendment as there is nothing to suggest in the Amending Act that amendment made in Explanation 2 was clarificatory in nature. Wherever the Legislature wants to clarify the provision, it clearly mentions intention in the notification itself and seeks to clarify existing pro....