The main legal point established in the judgment is the eligibility of a manufacturer for credit on iron steel and items used in the fabrication of identifiable capital goods, which are in turn used for the manufacture of excisable goods.

ORDER

Dr. S. Muralidhar, CJ. - These appeals arise out of a common set of facts and involve the same questions of law. They accordingly disposed of by this common order.

2. OTAPL No.4 of 2018 is directed against an order dated 12th July, 2017 passed by the Customs, Excise and Service Tax Appellate Tribunal, East Zonal Bench, Kolkata (CESTAT) in Excise Appeal No.232 of 2007 allowing structural materials as inputs and thereby allowing the Respondent CENVAT Credit in the sum of Rs.1,19,59,360.67.

3. While admitting this appeal on 17th July, 2019, the following questions of law were framed by this Court for consideration:

'(i) Whether under the facts and circumstances of the case, the Tribunal is justified in dismissing the appeal without considering the facts that the items claimed as inputs have been used for fabrication items of supporting structures of the capital goods?

(ii) Under the facts and circumstances of the case, when this supporting structures, fabricated and embodied to the earth and hence do not constitute as 'Goods' under the statute, whether the Tribunal is right in law by allowing the CENVAT Credits on the disputed goods used for fabrication of the supporting structures for the Capital goods?

(iii) Under the facts and circumstances of the case, once these supporting structures dismantled, cannot be termed as excisable goods and as such will not come under the broad definition of capital goods as defined under Rule 2 of the CENVAT Credit Rules, 2004, therefore, whether the Tribunal is right in law by holding these disputed fabrication goods used for the supporting structures, as inputs of the Capital Goods?'

4. OTAPL No.34 of 2018 is directed against the order dated 30th November, 2017 passed by the CESTAT in Excise Appeal No.E/979 of 2011 deciding the said appeal involving same questions in like manner. The same questions of law as framed in OTAPL No.4 of 2018 have been framed by this Court while admitting OTAPL No.34 of 2018 on 6th March, 2020.

5. OTAPL No.33 of 2018 is an appeal by the Department against the order dated 30th November, 2017 passed by the CESTAT in Excise Appeal No.E/979 of 2011 and E/15 of 2012 again answering the questions in identical fashion. The same questions of law were framed by this Court while admitting this appeal on 6th March, 2020.

6. Since the facts are more or less similar, the facts in OTAPL 4 of 2018 alone are discussed. The Respondent Company had obtained a Central Excise Registration under Section 6 of the Central Excise Act, 1944 (CE Act) for the purposes of manufacturing of sponge iron and its derivative products. For manufacturing, the Respondent constructed/installed 4 100TPD Sponge Iron Plant and availed CENVAT Credit on input on various items during the relevant period i.e. from May to August, 2004. A part of the inputs included construction materials.

7. On 7th June, 2005, the Commissioner, Central Excise & Customs, Bhubaneswar issued a Demand-cum-Show Cause Notice to the Respondent inter alia on the following grounds:

'(i) The amount of Rs.1,20,61,289/- on inputs taken wrongly by the notice during the month from May, 2004 to August, 2004 shall not be recovered from them under Rule-12 of the Cenvat Credit Rules, 2002 read with the provisions of Section 11A of the Central Excise Act, 1944.

(ii) Interest at the appropriate rate shall not be recovered from them under Rule-12 of Cenvat Credit Rules, 2002 read with Section 11AB of the Central Excise Act, 1944; and

(iii) Penalty shall not be imposed on them under Rule- 13 of the Cenvat Credit Rules, 2002 for taking such wrong credit of duty on the inadmissible Iron & Steel material, welding electrodes etc. Contravening the provisions Rules, 2, 3 & 6 of the CENVAT Credit Rules, 2002.'

8. The Respondent then appeared before the Adjudicating Authority and contended that the structural items had been used within the factory premises for manufacture of parts/components or capital goods, which have been classified as such under Chapter-84 of t