TMI Blog2013 (5) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... - the assessee was entitled to the relief of MODVAT Credit - against revenue. - E/421/2009 - order No.40179 of 2013 - Dated:- 8-5-2013 - Shri P.K. Das and Shri Mathew John, JJ. For the Appellant: Shri Joseph Dominic, Consultant For the Respondent: Shri M. Rammohan Rao, Dy. Commissioner (AR) JUDGEMENT Per P.K. Das The relevant facts of the case as revealed from the record, in brief, are that the appellant is engaged in the manufacture of Cement. They were availing CENVAT credit under the CENVAT Credit Rules, 2004. By a show-cause notice dated 19.2.2009, it has been alleged that during the period from April 2006 to May 2008, the appellant availed irregular credit on capital goods, namely MS Angles, MS Beams, MS Channels and TMT bars classifiable under heading 72, 73 and 74 of the Schedule to the Central Excise Tariff Act, 1985. It has further been alleged that the Chapter heading of these items were not covered under the definition of capital goods under Rule 2(a) of the said Rules, 2004. Further, these items were not used in the manufacture of finished products. The learned Commissioner confirmed the demand of CENVAT of Rs.53,23,756/- under proviso to Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f different parts and components of a machine at site does not result in manufacture of excisable goods because the plant emerges as an immovable property and not as goods. It is contended that the decision of the Hon ble Supreme Court and Larger Bench of the Tribunal were not placed before the Hon ble Madras High Court in the appellant s own case. Regarding the issue of time bar, the learned AR drew the attention of the Bench to the relevant portion of the findings of the Commissioner. 4. After hearing both the sides and on perusal of the records, we find that the issue involved in this case is whether CENVAT credit availed on MS Angles, MS Beams, MS Channels, TMT bars, Tor rods etc. would be covered within the definition of capital goods under Rule 2(a)(A) of CENVAT Credit Rules, 2004. For the purpose of proper appreciation, Rule 2(a)(A) Rules, 2004 is reproduced below:- 2. Definitions In these rules, unless the context otherwise requires (a) Capital goods means:- (A) the following goods, namely:- (i) all goods falling under Chapter 82, Chapter 84, Chapter 85, Chapter 90, Heading No. 68.05 grinding wheels and the like, and parts thereof falling under Heading 6804 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding to blending silo. The function of the Electrostatic Precipitator is that the vent air from cooler is de-dusted in the electrostatic precipitator and clean air is put into the atmosphere. Ash handling System is a Pollution Controlling Equipment. It is contended by the appellant that the items in question were admittedly used for erection of new additional Electrostatic Precipitator (ESP) for Raw Mill Project, Additional Fly Ash Handling System, MMD Crusher etc. for the Dry Process Cement Manufacturing Plant and therefore the items in question are component or spares or accessories of the same. Under Rule 2(a)(A)(ii) such goods are capital goods irrespective of its classification. 6. It is seen from the decision of the Hon ble Madras High Court vide judgment dated 13.12.2012 in CMA No. 3101 of 2005 in the appellant s own case, for the different period, CENVAT credit was allowed as these items were used for fabrication of structurals to support machines like crusher, kiln, hoppers, pre-heaters conveyor system etc. and that without these structurals, the machinery could not be erected and could not function. The relevant portion of judgment dated 13.12.2012 (supra) is reproduced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies below in the case on hand, we have no hesitation in rejecting the Revenue s appeal, thereby confirming the order of the Tribunal. 7. In the present case, it is seen that the items in question were used in the erection of various machineries such as, - new additional Electrostatic Precipitator for raw mill project, additional fly ash handling system, MMD crusher etc. for the Dry Process Cement Manufacturing Plant. It is evident that MS Angles, MS Beams, MS Channels etc. were used in the erection of machineries it become component of the same, which are integral part of Dry Process Cement Manufacturing Plant. It is noted that Fly Ash handling system is a pollution control equipment and particularly mentioned in 2(a)(A)(ii) of Rules, 2004. The allegation in the above show-cause notice that the Chapter Heading of these items were not covered under Rule 2(a) of the Rules, 2004, is not sustainable, in respect of pollution control equipments because the rule does not specify the tariff headings under which pollution control equipment should be falling. The appellant established that these items were used for erection of capital goods namely Dry Process Cement Manufacturing Plant, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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