TMI Blog2005 (1) TMI 527X X X X Extracts X X X X X X X X Extracts X X X X ..... /1032-1041/2002 3. The issue in all these appeals relate to the disallowance of Modvat credit on certain items on the grounds that they are not capital goods. The details of the goods involved and the amount of duty demanded in respect of each appeal are given in the following tabular column :- S. No. Appeal No. Amount Period Issue/goods - Modvat credit 1. E/1032/02 Rs. 1,28,21,690/- penalty Rs. 2.5 lakhs Rs. 1,18,73,179/- (party) Penalty Rs. 1 lakh Period - March 98. HR plates, Angles channels, Joists, HR sheets, etc., used in manufacture of OH crane storage tank other Tech structures (nil rate of duty) 2. E/1033/02 Rs. 3,37,69,085/- Period - Jan 98 to Feb 98 Penalty Rs. 2 lakhs 1. H.R. plates used for DG shed, site office working platform, ladders, walk ways, site stores, canteen etc. (nil duty) 2. Structures parts of structures. 3. E/l 034/02 Rs. 2,88,737/- Penalty Rs. 5000/- Period - March 99 Gas mask Paroram nova oxy K-50 (Ch. 90-20) (Safety purpose) 4. E/1035/02 Rs. 10,30,195/- Penalty Rs. 1 lakh Period - September 98 Same as Item No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M. S. Nagaraja, the learned Advocate showed us eight copies of photographs of different places in the plant of the appellants depicting usage of HR plates, angles, channels, joists, etc. The learned Advocate urged that all these items are used for fabricating the support structure which are definitely part of the plant and are capital goods as held by various judicial decisions. The learned Advocate relied on a plethora of case laws to hold that the impugned goods are entitled for Modvat credit as capital goods. The following Tabular column indicates the items, reasons for disallowance of Modvat credit by the department and case laws relied upon by the appellants :- S. No. Item Description Reason for disallowance Relied upon judgments and their ratio in brief 1. MS Equipment Support Structures - Used for fabrication of structures, which are not goods Jawahar Mills Ltd . v. CCE - 1999 (108) E.L.T. 47 (Tribunal - LB) - The expression plant would cover all items necessary for carrying on the activity of manufacture that are not consumable. All such goods, including cables wires are Capital Goods. Credit availed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able on MS Plates, Angles, Channels, steel structures. Nippon Denro Ispat Ltd . v. CCE - 2000 (117) E.L.T. 469 (T) - MS Angles, Plates, etc. could also be treated as inputs and eligible for Modvat credit in terms of Notification 67/95-C.E. 3. Generator Gas System Structures CCE v. Nava Bharat Ferro Alloys Ltd. - 2004 (166) E.L.T. 72 (T) - Modvat credit cannot be denied on the ground that the goods have become part of an immovable property. Lloyd Metals Engineers Ltd . v. Additional CCE - [2003 (162) E.L.T. 847 = 2003 (59) RLT 342 (CESTAT)] - Cement Steel used in the foundation of plant and machinery are eligible Capital Goods. Lloyds Steel Industries Ltd . v. CCE - 2004 (64) RLT 732 (T) - Iron Steel Structures used to support plant and machinery are eligible Capital Goods. 4. RCC Pipes No evidence led to show use in or in relation to manufacture CCE v. Pepsico India Holdings Ltd . - 2001 (130) E.L.T. 193 (T) - Pipes used outside the factory are merely an extension of the pipes used inside the factory, which in turn are used in or in relation to manufacture. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... denial of credit Jindal Steel and Power Ltd. v. CCE - 2004 (62) RLT 158 (CESTAT) - Mere non-filing of declaration not to result in denial of credit 10. HR Steel Cut Coils Used in water circulation system Accessory for the COREX Plant Non filing of Declaration under Rule 57T Union Carbide India Ltd . v. CCE - 1996 (86) E.L.T. 613 (Tri. LB) - Credit available as inputs to goods excluded from the definition of capital goods CC CE v. Modi Rubber Ltd . - 2000 (119) E.L.T. 197 (Tri. LB) - Declaration filed as Capital Goods sufficient for availment of credit as inputs. 5. We have gone through the rival submissions. In the light of the various judicial decisions, we find that the interpretation of Modvat Rules relating to Capital Goods is very liberal. Hence we cannot subscribe to a very restrictive interpretation of the rules by the Revenue. While interpreting the scope of the terms Capital Goods the Apex Court in Commissioner of Central Excise, Coimbatore v. Jawahar Mills Ltd. - 2001 (132) E.L.T. 3 (S.C.) has observed as follows - 4. The aforesaid definition of Capital ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. Hence they are capital goods. Hence we feel that the items at Sl. No. 6, are also entitled for Modvat credit as capital goods. As regards the item at Sl. No. 7, Transformer, in the case of Manikgarh Cement v. CCE - 2001 (136) E.L.T. 1085, the Tribunal has held that Transformers are Capital Goods . By following ratio of the Jawahar Mills case, we allow Modvat credit for the items at Sl. No. 8, Spring Hanger Supports, Cable Tray Assembly, etc. As regards items at Sl. No. 9, Refractory Cement, Tundish Relining Stand, Oil Tank units, Filter Cooling pumps, MSB Distribution Board, Position Indicator, Ladle Turner Parts, etc., Modvat credit was disallowed on the ground that the declaration under Rule 57T was not field. In the case of JBM Tools Ltd. v. CCE - 2002 (144) E.L.T. 561 (Tribunal), it has been held that the Modvat credit cannot be denied merely for non-filing of declaration where there is no dispute on the receipt of duty paid inputs/capital goods. There are other decisions also to support of the appellants. Hence we allow Modvat credit for these items. As regards item at Sl. No. 10, HR Steels Cut Coils, it is seen that the same is used in water circulation system which is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,56,500/-, the Commissioner (Appeals) directed that the original authority should cause verification and if this is proved, credit should be allowed. With regard to Modvat credit on tanks (E/1067/02), the Commissioner (Appeals) has held that wherever the impugned goods have been used for fabrication of eligible capital goods, particularly tanks, credit should not be denied. The Respondents have pointed out that the Commissioner (Appeals) has powers to remand the matter to the lower authority under Section 35A(3) even after its amendment from 11-5-2001 as held by the Hon ble High Court of Gujarat in the case of CCE v. Medico Labs. - 2004 (173) E.L.T. 117 (Guj.). There is nothing in Central Excise Act indicating that the Commissioner (Appeals) cannot pass orders with certain conditions. Passing a conditional order in a way amounts to passing a remand order. It has been clearly held that even if, the amendment of Section 35A(3), the Commissioner (Appeals) has powers to remand. Under these circumstances, we do not find any substance in the Revenue s appeals. Therefore, we reject the same. 8. In fine, the appeals of M/s. JVSL are allowed and those of Revenue are dismissed. (Pronoun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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