TMI Blog2014 (4) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment of Ambuja Cements Ltd. vs. Union of India (2009 (7) TMI 24 - CHATTISGARH HIGH COURT) and also the judgment of Hon’ble Rajasthan High Court in the case of Union of India vs. Hindustan Zinc Limited reported in [2008 (8) TMI 267 - RAJASTHAN HIGH COURT]. As regards the steel items used in fabrication of EOT cranes, I am of the prima facie view that the same would be eligible for Cenvat credit as the EOT cranes are capital goods. The only items which do not appear to be recovered by the definition of capital goods are the supporting structures for the furnace and the storage tanks embedded in the earth. However, I take note of the fact that in respect of storage tank embedded in the earth, there is judgment of Hon’ble Karnataka High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it in respect of these items, issued a show cause notice dated 20th December 2010 invoking extended period for recovery of allegedly wrongly taken Cenvat credit alongwith interest and also for imposition of penalty. The show cause notice was adjudicated by the Deputy Commissioner vide order-in-original dated 30th June 2011 by which the Cenvat credit demand of the above amount was confirmed alongwith interest and penalty of equal amount was imposed on the appellant under Rule 15 (2) of the Cenvat Credit Rules. On appeal to Commissioner (Appeals), the order of the Deputy Commissioner was upheld in toto vide order-in-appeal dated 9/10/12 against which this appeal has been filed alongwith stay application. 2. Heard both the sides in respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chattisgarh High court in the case of Ambuja Cements Ltd. vs. Union of India reported in 2009 (244) E.L.T. 350 (Chattisgarh), that the appellant, therefore, have a strong prima facie case and, hence, the requirement of pre-deposit of the Cenvat credit demand, interest thereon and penalty may be waived for hearing of the appeal and recovery thereof may be stayed till the disposal of the appeal. 4. Shri R.K. Mathur, the learned Departmental Representative, opposed the stay application reiterating the findings of the Commissioner (Appeals) in the impugned order and pleading that all the steel items, in question, have been used either for fabrication and erection of supporting structures of the machinery or for fabrication of fixed to the ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vat credit as the EOT cranes are capital goods. The only items which do not appear to be recovered by the definition of capital goods are the supporting structures for the furnace and the storage tanks embedded in the earth. However, I take note of the fact that in respect of storage tank embedded in the earth, there is judgment of Hon ble Karnataka High Court in the case of CCE, Mysore vs. ICL Sugars Ltd. (supra) holding that the storage tanks in a sugar mill even if embedded in the earth are capital goods in terms of the definition of this term as given in Rule 57Q of the Erstwhile Central Excise Rules. In any case, the question as to whether the storage tanks embedded in the earth are goods and, hence, covered by the definition of capita ..... X X X X Extracts X X X X X X X X Extracts X X X X
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