TMI Blog2014 (10) TMI 763X X X X Extracts X X X X X X X X Extracts X X X X ..... h pollution control equipment should be falling. The appellant established that these items were used for erection of capital goods namely Dry Process Cement Manufacturing Plant, which falls under Chapter 84, as mentioned in Serial No.(i) of Rules 2(a)(A). Thus, the items in question are covered in serial No.(iii) of Rules 2(a)(A) of the Rules, CBEC has clarified that all parts, components, accessories which are to be used with capital goods in serial (i) and (ii) of Rules 2(a)(A) and classifiable under any chapter heading are eligible for availment of CENVAT credit. A plain reading of serial (iii) cannot lead to a different conclusion either. The keyword is that such goods must be used in the factory for the manufacture of the final products and it is relatable to plant, equipment, machinery set out in Explanation (1)(a) to Sec.57Q and which is used for producing or processing any goods or bringing about any change in any substance for the manufacture of final product. The intent is wide enough to accept MS Tank as capital goods. Following decision of The Commissioner of Central Excise & Service Tax Versus M/s. India Cements Ltd. [2014 (7) TMI 881 - MADRAS HIGH COURT] - Decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the original authority, came to the conclusion that MS Tanks is eligible for Modvat Credit and held as follows: 6.2.6 MS Tanks: The Hon'ble Tribunal in the case of STS Chemicals Limited vs CCE, Mumbai III reported in 2001 (132) 704 (Tri. Mum) held that storage tanks used for storing finished goods including by-products are eligible for modvat credit under rule 57Q. The above said decision was followed by the Hon'ble Tribunal, Chennai in the case of EIP Parry (I) Ltd., Vs CCE, Trichy reported in 2002 (150) ELT 765 (Tri. Che) wherein it was held that Acetaldehyde Tank, Condensate Tank and FRP Tank, required for storing intermediate products and processed material, are eligible for modvat credit as capital goods. By applying the ratio of the above decisions of the Hon'ble Tribunal, I hold that MS Tank is eligible for modvat credit. 7. Against which, the Department went on appeal before the Tribunal and contended that MS Tanks (Heading No.73.09 of the CETA Schedule) were brought within the scope of capital goods for Modvat purpose only with effect from 01.03.2001 vide Notification No.6/2001-CE(NT) dated 01.03.2001 and therefore, so far as MS Tanks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per Clause (a) of Explanation I to Rule 57Q(I), when the said goods have been defined as Capital goods only from 1.3.2001 onwards? (c) Whether the Hon'ble Tribunal is correct in holding that M.S. Tank as Capital goods, entitled to credit under Rule 57Q, in the absence of a express provisions in the Rule, prevailing during the relevant period? And (d) Whether the Hon'ble Tribunal is right in extending modvat credit, in the absence of any clarification from the Ministry to the effect that M.S.Tank would also fall under the definition or plant or machinery used for manufacturing final product? 14. The question is whether M.S. Tanks, used as a capital goods is entitled to the benefit of modvat credit under sec.57Q. 15. The Commissioner (Appeals) as well as the Tribunal have given clear finding that M.S. Tanks, in question, is a capital goods used in the process of manufacturing plant relying on the findings in the case of STS Chemicals Limited vs CCE, Mumbai III reported in 2001 (132) 704 (Tri. Mum) and EID Parry (I) Ltd vs CCE, Trichy reported in 2002 (150) ELT 765 (Tri.Che), wherein it was held that MS Tank is eligible for modvat credit as i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of serial (iii) cannot lead to a different conclusion either. 8. After considering the use of the goods in question, in our considered view, the present case is covered by the decision of the Hon'ble Madras High Court in appellant's own case as referred above. We have also noticed that the Hon'ble Supreme Court in the case of Rajasthan Spinning and Weaving Mills Ltd (supra) as relied upon the Hon'ble High Court in the appellant's own case, allowed MODVAT credit on MS channels, steel plants etc., as capital goods used for erection of chimney for diesel generating set. The findings of the Commissioner that these are structures fixed to earth with concrete foundations and are immovable appears to be beyond the scope of the show-cause notice. So, the case of M/s Triveni Engineering Industries Ltd (supra) as relied upon by the learned AR is not applicable in the present case. 17. Learned counsel for the respondent/assessee placed reliance of the Karnataka High Court reported in 2011 (271) E.L.T. 360 (Kar.) (Commissioner of C.Ex., Mysore vs ICL Sugars Ltd). 18. Learned counsel for the Revenue also placed reliance of the Apex Court judgment rep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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