TMI Blog2013 (8) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... ry fixed to/embedded to the earth is not relevant - Cenvat credit cannot be denied – Decided in favor of Assessee. - Appeal No. 993-995 of 2011 (SM) - Final Order Nos. 56592-56594/2013-SM(BR)(PB) - Dated:- 15-5-2013 - Mr. Rakesh Kumar, J. For the Appellant: S/Shri B.L. Narasimhan and Hemant Bajaj, Advocates For the Respondent: Shri Nagesh Pathak, Authorized Representative (DR) JUDGEMENT Per. Rakesh Kumar :- The appellants are manufacturers of the goods falling under Chapter 87 of the Central Excise Tariff. They avail Cenvat credit of Central Excise duty paid on inputs and capital goods in accordance with the provisions of the Cenvat Credit Rules, 2004. The period of dispute in this case is from October 2004 to Februar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants, pleaded that what had been brought into the factory were goods falling under Chapter 85 which are covered by the definition of capital goods, that for permitting capital goods Cenvat credit only two conditions have to be satisfied - first, that the items brought must be in the list of the items mentioned in the definition of the capital goods and second, the same must be used in the factory, that both the conditions are satisfied in respect of the goods, in question, that just because the items brought were used for fabrication and erection of paint shop which is fixed to the earth, the Cenvat credit cannot be denied, that Apex Court s judgment in the case of CCE, Mumbai vs. Josts Engineering Co. Ltd. (supra), wherein it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich being fixed to the earth structure, is not excisable and hence these items are not eligible for Cenvat credit. In my view, this objection by the department is absurd, as for permitting capital goods Cenvat credit, what has to be seen is as to whether the goods fall in the Chapters specified in the definition of capital goods or are the items specifically mentioned in the definition of capital goods and secondly whether those goods were used in the factory. The purpose for which the goods were used and whether after use the goods became part of plant and machinery fixed to/embedded to the earth is not relevant. If Revenue s contention is accepted, the provisions regarding capital goods Cenvat credit would became redundant, as most of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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