2018 (7) TMI 987 – CESTAT NEW DELHI – TMI – CENVAT Credit – inputs/capital goods – iron and steel items – whether the iron and steel items (angle, channel, joist, bar plate sheet and coil) can clearly fall under the definition of capital goods and the inputs? – Held that:- The Sub Clause (i) of Rule 2a of CCR makes it very clear that any item other than those falling under Chapters 82, 84, 85 and 90 will not be a capital good. Apparently and admittedly the impugned iron and steel items are falling under Chapter 72. For these items to still fall under the aforesaid definition, it is for the appellant to show that these items have been used as components, spares and accessories of the goods falling under the above mentioned Chapters, i.e. 82, 84, 85 & 90 – As is very much apparent from the terminology used, the items are used purely for the construction activity – there is nothing on record as may show that these items have been used in such a structure which is used in or integrally co
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re availing the facility of cenvat credit on inputs and capital goods for the manufacture of sugar. The Department during scrutiny of the records of the appellants noticed that they have availed cenvat credit on iron and steel items like angle, channel, joist, bar played sheet and coil falling under Chapter 72 of Central Excise Tariff Act, 1985 under the category of them being the capital goods. While relying upon Rule 3 Sub-Rule 1 of Cenvat Credit Rules, 2004 the said availment has been denied on the ground that the aforesaid items are of the nature of construction material and appear in no way used in or in relation to the manufacture of final products. Resultantly, a Show Cause Notice dated 13.06.2008 was issued calling upon the appellant to deposit back the cenvat credit as has already been availed by them alongwith the interest. The said notice was initially adjudicated by Assistant Commissioner Customs and Central Excise Jabalpur Division vide Order dated 31.05.2017 vide which th
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ilable. It is only after the decision of Larger Bench in the case of Vandana Global Pvt. Ltd. Vs CCE, Raipur 2010 (253) ELT 440 that the credits on such iron and steel items on the ground of these being construction material has been denied. It is also submitted that though the certificate of the CE was called upon by the Adjudicating Authority, but the certificate is dated 25.03.2017 and the period during which the impugned items were used is 2003-08. Hence, it was not practically possible for the CE to precisely certify about the use. With these submissions the appellant has prayed for the impugned order to be set aside and Appeal to be allowed. 5. While rebutting these arguments, it is submitted by the Ld. DR that at this stage, the appellant cannot backout from the CE certificate because it is on the basis of this certificate only that the impugned cenvat credit amounting approximately to 31 lakhs has been availed. While justifying the impugned order it is submitted that the Commis
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e First Schedule to the Excise Tariff Act; (ii) pollution control equipment; (iii) components, spares and accessories of the goods specified at (i) and (ii); (iv) moulds and dies, jigs and fixtures; (v) refractories and refractory materials; (vi) tubes and pipes and fittings thereof; and (vii) storage tank, used- (1) in the factory of the manufacturer of the final products, but does not include any equipment or appliance used in an office; or (2) for providing output service; (B) – (k) "input" means- (i) all goods, except light diesel oil, high speed diesel oil and motor spirit, commonly known as petrol, used in or in relation to the manufacture of final products whether directly or indirectly and whether contained in the final product or not and includes lubricating oils, greases, cutting oils, coolants, accessories of the final products cleared along with the final product, goods used as paint, or as packing material, or as fuel, or for generation of electricity or steam us
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pparently and admittedly the impugned iron and steel items are falling under Chapter 72. For these items to still fall under the aforesaid definition, it is for the appellant to show that these items have been used as components, spares and accessories of the goods falling under the above mentioned Chapters, i.e. 82, 84, 85 & 90. From the appellant s own submissions it is clear that appellant has been using these iron and steel items for the purpose of constructing roof, platforms and columns. As is very much apparent from the terminology used, the items are used purely for the construction activity. I find nothing on record as may show that these items have been used in such a structure which is used in or integrally connected with the process of actual manufacture of the final product. 7. The reliance of the appellant on the Circular No. 267/11/2010 dated 08.07.2010 is also not applicable to the given facts and circumstances, as the structures for which the impugned iron and stee
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to certify these iron and steel items to have been used so integrally so as to entitle the appellant to avail the cenvat credit. The conduct of appellant for denying the reliability on CE certificate is also observed as improper for the reason as pointed out by the Ld. DR that on this CE certificate only that the appellant has availed the impugned cenvat credit. 9. The appellant has also objected the imposition of penalty on the ground that the cenvat credit even if is held to have been wrongly availed, it was only on account of misinterpretation of the provisions on bonafide belief. Accordingly had prayed for setting aside of the penalty. I find that the Adjudicating Authorities below have rightly relied upon Rule 9(6) of Cenvat Credit Rules, 2004. In view thereof, the Act of the appellant has rightly been held as suppression of relevant facts. Resultantly, I find no infirmity as far as the imposition of penalty under the impugned order is concerned. 10. In the view of entire above di
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