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2014 (4) TMI 87 - AT - Central ExciseAvailment of CENVAT Credit - Whether during the period from December 2007 to June 2010, the appellant would be eligible for Cenvat credit in respect of MS Angles, channels, plates, bars etc. used for fabrication of structural supports for induction furnace, fabrication and making of storage tanks, embedded in the earth, fabrication of EOT cranes and for repair and maintenance of inner and outer walls of the induction furnace - Held that:- Steel items used in repair of outer and inner wall of the induction furnace, the same being used in the repair and maintenance of the capital goods would be eligible for Cenvat credit, in view of judgment of Ambuja Cements Ltd. vs. Union of India (2009 (7) TMI 24 - CHATTISGARH HIGH COURT) and also the judgment of Hon’ble Rajasthan High Court in the case of Union of India vs. Hindustan Zinc Limited reported in [2008 (8) TMI 267 - RAJASTHAN HIGH COURT]. As regards the steel items used in fabrication of EOT cranes, I am of the prima facie view that the same would be eligible for Cenvat credit as the EOT cranes are capital goods. The only items which do not appear to be recovered by the definition of capital goods are the supporting structures for the furnace and the storage tanks embedded in the earth. However, I take note of the fact that in respect of storage tank embedded in the earth, there is judgment of Hon’ble Karnataka High Court in the case of CCE, Mysore vs. ICL Sugars Ltd. (2011 (4) TMI 1065 - KARNATAKA HIGH COURT) holding that the storage tanks in a sugar mill even if embedded in the earth are capital goods in terms of the definition of this term as given in Rule 57Q of the Erstwhile Central Excise Rules - At this prima facie stage, this does not appear to be a case for total waiver - Conditional stay granted.
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