TMI Blog2013 (5) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... vered by Chapter 84 and hence is capital goods. As decided in CCE Raipur Vs. Ambuja Cement Eastern Ltd. (2003 (10) TMI 589 - CESTAT, NEW DELHI) steel items used for fabrication of gantry rails on which EOT cranes mines would be eligible for cenvat credit as inputs, as the definition of inputs also includes the items used for fabrication of capital goods used in the factory. Commissioner (Appeals)’s order disallowing the cenvat credit in respect of steel items used for embedded to earth tanks is upheld as from the way Rule 2 (a) is worded, it is absolutely clear that the various items mentioned in this Rule has to be goods i.e. movable properties. Since the impugned order does not mention the separate account of cenvat credit in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, these items were used mainly for fabrication of storage tanks, and also for fabrication of gantry rails for EOT cranes. The storage tanks are the tanks embedded to earth and are used for processing of steel polls for various processes including galvanizing. The department was of the view that the appellant are not eligible for cenvat credit in respect of the above mentioned items, as the same are neither capital goods nor inputs. Accordingly, after issue of show cause notice, the jurisdictional Addl. Commissioner and Dy. Commissioner by two separate orders confirmed the cenvat credit demands of Rs.7,67,689/- and Rs.2,86,789/- along with interest and imposed penalties of equal amounts on the appellant. 1.2 The original adjudicating auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to earth and immovable, have to be treated as capital goods, that the ratio of these judgements of the Hon ble Karnataka and the Coordinate Bench of the Tribunal is squarely applicable to the facts of this case, that as regards the gantry rails, the same are part of EoT cranes and in this case, he relies upon the judgement of the Tribunal in the case of Commissioner of Central Excise, Raipur Vs. Ambuja Cement Eastern Ltd. 2004 (177) ELT 618, (Tribunal-Delhi), that jigs are specifically covered by the definition of capital goods and steel items used in fabrication of jigs would be eligible for cenvat credit and that in view of this, the impugned order disallowing the cenvat credit in respect of these items is not sustainable. 4. Shri B.B. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... systems are its accessories, and hence entitled to cenvat credit as capital goods. Therefore, steel items used for fabrication of gantry rails on which EOT cranes mines would be eligible for cenvat credit as inputs, as the definition of inputs also includes the items used for fabrication of capital goods used in the factory. 9. The next point of dispute is as to whether various steel items used in fabrication of tanks embedded to earth tanks would be eligible for cenvat credit. In this regard, it would be worthwhile having a look on the definition of capital goods as given in Rule 2(a) of the Cenvat Credit Rules, 2004, which is reproduced below:- Definitions - In these rules, unless the context otherwise requires,- (a) "capital goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant has cited the judgements of Hon ble Karnataka High Court and the judgement of Coordinate Bench, I find that in these judgements, this point has not been considered. The Larger Bench of the Tribunal in the case of Vandana Global Ltd. Vs. Commissioner of Central Excise, Raipur 2010 (253) ELT 440 (Tribunal-LB) has also held that the capital goods have to be the goods first and the structures fixed to earth are capital assets, not capital goods. Moreover from the way Rule 2 (a) is worded, it is absolutely clear that the various items mentioned in this Rule has to be goods i.e. movable properties. I, therefore, hold that steel items used for construction of underground/embedded to earth tanks would not be eligible for cenvat credit. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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