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TMI Blog2008 (7) TMI 678X X X X Extracts X X X X X X X X Extracts X X X X ..... oth sides. 3. Learned advocate Shri R.C. Saxena on behalf of the appellant states that at the relevant time, Rule 57Q did not require the capital goods to be used in or in relation to manufacture and w.e.f. 1-3-97, Rule 57Q was amended whereby the meaning and scope of the word "capital goods" have become much wider by permitting Cenvat credit on capital goods for any use in the factory. The show cause notice is time-barred since the period involved is from Sept.'99 to Nov.'03. They had submitted detailed description and manner of use for each of the items involved with tariff classification and its coverage to the department. All items have been used in factory only and all are essential and are part and parcel of the entire manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Heading No. 68.02; and 9. Lubricating oils, greases, cutting oil and coolants. All goods specified in the First Schedule to the CETA, 1985, other than the following namely :- (i) all goods falling under heading No. 36.05; (ii) ingots and billets of non-alloy steel felling under sub-heading Nos. 7206.90 and 7207.90, manufactured in an induction furnace unit, whether or not any other goods are pro- oduced in such induction furnace, and hot re-rolled products of non-alloy steel falling under sub-heading Nos. 7211.11, 7211.19, 7211.30, 7211.52, 7211.59, 7211.60, 8211.92, 7211.99, 7213.90, 7214.90, 7215.90, 7216.10 and 7216.90 on which duty is paid under Section 3A of the CEA, 1944"; 7.1 Item No. 1 : BIMIP 70 SV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that impugned goods are not used in refrigerating/air-conditioning equipments/appliances in plant. Therefore, it was necessary for the department to examine how these equipments/appliances have been used in the factory of the appellant and based on the use, a decision should have been taken as to whether the appellants are eligible for credit or not. The adjudicating authority and the appellate authority have presumed that appellant should have made positive assertion to take credit and have not examined this aspect. Therefore, in respect of these items we feel the matter has to go back to original adjudicating authority to consider actual use that these goods have been put and decide eligibility based on actual use. 7.4 Item No. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is case appellants are not supplier; but buyers of chlorine and there is no evidence of variation in price. The lower authority has denied the benefit on the ground that cylinders are used for transportation and it does not amount to utilization in the factory. It is not known whether chlorine brought in cylinders is transferred to any storage tank within the factory and thereafter the same is used or cylinders are connected directly to the manufacturing facility and chlorine is used as LPG cylinders are used in houses. If the cylinders are not used in the factory directly and chlorine is transferred to storage tank before using the same, credit may not be admissible since in such a event, the usage of the cylinder will be only for transpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g under CH 84. The lower authority is required to consider whether this item is covered by Sr.No.5 of the Table under the heading "components, spares and accessories" of the goods specified against Sr.Nos.1 to 4 above. The restriction of tariff heading for exclusion does not apply to components, spares and accessories. 7.7 Item No. 10 : Carbon filled bush. The credit has been disallowed on the ground that no information regarding eligibility of the mechanical equipment has been furnished and on that ground, credit has been disallowed. The appellant may furnish necessary information to the lower authority so that a decision can be taken on this item. 7.8 Item No. 11 : Hot rolled plate/Bar plate. The eligibility of MS plates etc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Modvat credit stands confirmed." 8.2 We find the appellants in their appeal memo stated that they had taken up grounds of limitation during the personal hearing by oral submission. They have also contended that even if the grounds were not taken up, the adjudicating authority should have considered limitation in detail. 8.3 As regards limitation, Commissioner (Appeals) has observed : "As regards the appellant's argument that the SCN is time barred, I find that there is no merit in the appellant's above argument in as much as the appellants have knowingly availed the capital goods credit though the disputed items are not covered under the definition of capital goods under Rule 57Q and deliberately availed the credit with inten ..... X X X X Extracts X X X X X X X X Extracts X X X X
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