TMI Blog2009 (6) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... ity. It is seen from the factual findings of the adjudicating authority that the cement or steel are used by the appellant for the purpose of constructing Iron/Coke Storage tank, It is also seen from the records that there was an actual visit by the Assistant Commissioner to the factory premises of the appellant and vide his letter dated 27-12-2005, has confirmed that the said items were used only for the construction of Storage Tanks and Pollution Control equipments. In the case before us, the factual aspect of the inputs viz. steel and cement having been used for the manufacture of storage tanks is not disputed by the Revenue. In the absence of any contrary evidence to the factual evidence as noticed by the adjudicating authority during t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Adjudicating Authority, after considering the entire evidence, placed before him in the form of photographs and other documents, dropped the proceedings initiated by the Show Cause Notices. The Revenue being aggrieved by such a decision filed an appeal before the learned Commissioner (Appeals). The learned Commissioner (Appeals), after considering the argument of the Revenue, came to a conclusion that the items on which credit has been availed, are nothing but construction materials and the definition of capital goods does not include cement and steel, held that the impugned orders are liable to be set aside, and he set aside the impugned orders and allowed the departmental appeals by upholding the denial of the Cenvat credit and also impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cture of final product and the only requirement is that the same should be used in the factory of the manufacturer. It is also his submission that the basic premise under which the impugned order seeks to recover the Cenvat credit is wrong. It is submitted that the entire Show Cause Notice proceeded on a presumption that the appellants are not liable to avail Cenvat credit on the goods as they are not capital goods. It is his submission that the learned Commissioner (Appeals) has traversed beyond the Show Cause Notice in coming to a conclusion that the items fabricated/manufactured out of the inputs used are immovable goods and as such are non-excisable and hence the credit is inadmissible. It is his submission that this issue being not the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim of the assessee and observed that the item Pollution Control equipments and the Storage Tanks are listed at serial No. (ii) and (vii) of definition respectively given in Rule 2(b) of the Cenvat Credit Rules, 2002, similarly the said items are listed under the same serial Nos. of (ii) and (vii) of definition given in Rule 2 (a)(A) of Cenvat Credit Rules, 2004. 10. The Advocate of the assessee also filed photographs I to V of Iron/Coke Storage tank, Gas storage tank, Pipes for Pollution equipments for the construction of which the Cement and Steel materials are used. The department has not disputed the fact of the usage of the said items in the construction of Storage tanks/Pollution control Equipments. In fact the Jurisdictional Assi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of penalty on them as proposed in the Show Cause Notice." 6.1 The findings of the learned Commissioner (Appeals) on an appeal filed by the department, only discussed the case-laws and nothing on the factual findings as reproduced herein above. The learned Commissioner (Appeals) has, in his impugned order, mostly tried to interpret the law theoretically. The learned Commissioner (Appeals), in his final findings has given a conclusion as under:- "In view of the above legal position, I hold that the cement and steel used for manufacture of any storage tanks which are immovable properties and are not capable of being bought and sold in the market and hence non excisable goods, no credit of duty paid on any inputs used for manufacture of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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