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TMI Blog2012 (9) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... L.R. Steels Limited is carrying on the business of manufacturing pig iron, G. Slag, Coke and Fuel. It holds Central Excise Registration certificate. A show case notice came to be issued on 30-6-2005 alleging that they have irregularly availed Cenvat credit of Rs. 21,34,251/- on ineligible items like steel, cement etc. and they were asked to a show cause why the said amount should not be recovered from them under Rule 11/14 of the Cenvat Credit Rules, 2002 and 2004 respectively read with Section 11A of the Central Excise Act, 1944. The assessee filed his objections pointing out that the said material was purchased and used as an input in construction of pollution control equipments as well as storage tanks. The Additional Commissioner of Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel for the revenue assailing the impugned order contends that the assessee is not in the business of manufacture of storage tanks. Storage tank is an immovable property. It is not excisable. In those circumstances, the duty paid on steel and cement which is used for the construction/manufacture of storage tank cannot be availed by the assessee as cenvat credit. Infact, the definition of ''input'' in particular, Explanation 2 as amended in 2009 supports his contention. Therefore, he submits the order passed by the tribunal is erroneous and the appellate authority's order has to be restored. 4. Per contra, learned counsel for the assessee contended the material on record clearly establishes that the steel and cement was purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, but does not include any equipment of appliance used in an office; or (2) For providing output service. 7. A perusal of the aforesaid provision makes it very clear though storage tanks may be immovable property and the pollution control equipment are included within the definition of ''capital goods'', input as defined in Rule 2(k) makes it clear that ''input'' includes in goods used in the manufacture of capital goods which are further used in the factory of the manufacturer. Therefore, the input is not necessarily to be used in the manufacture of final product. By virtue of explanation 2 - goods used in the manufacturer of capital goods which are further used in the factory of the manufacture also falls ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be utilized as a cenvat credit by the assessee notwithstanding the fact that the storage tank is an immovable property. Therefore, the appellate authority committed a serious error firstly in holding that the storage tank is an immovable property and secondly, on the ground that it cannot be bought and sold in the market, the criteria which is totally unwarranted under the circumstances. Therefore, the Tribunal was justified in setting-aside the said order and holding that the assessee is entitled to the benefit.
9. In that view of the matter, we do not see any merit in this appeal. The substantial question of law is answered in favour of the assessee and against the revenue. Ordered accordingly. X X X X Extracts X X X X X X X X Extracts X X X X
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