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TMI Blog2015 (10) TMI 2082X X X X Extracts X X X X X X X X Extracts X X X X ..... er for disposal. 2. In the assessees appeal No. C/57/2011, the facts are that the appellants imported titanium sheets for clearance under Status Holder Incentive Scheme (SHIS) claiming benefit of Notification No. 104/2009 dated 14.9.2009. The adjudicating authority denied the benefit of notification on the ground that titanium sheets are not capital goods. On appeal, Commissioner (Appeals) upheld the order. 3. In appeal No. C/41438/2013, filed by Revenue, the issue are identical but relating to subsequent imports of same item, where the adjudicating authority denied the exemption Notification No. 104/2009 and also confirmed Rs. 5,73,026/- under section 28(2) of Customs Act, 1962. On appeal, learned lower appellate authority set aside the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the goods are allowed in one scheme as capital goods the same cannot be denied for SHIS scheme. Once the licensing authority has allowed the goods under capital goods customs authorities cannot question the licensing authority and deny the benefit. He also submits that the Commissioner (Appeals) in their own case for subsequent period has allowed and held that the impugned goods are capital goods only. He relied on the following decisions:- (a) Reliance Communications Infrastructure Ltd. Vs. CC, Bangalore 2009 (240) ELT 461 (b) Heinz India Ltd. Vs. State of Kerala 2009 (245) ELT 71 (Ker.) For the Revenue appeal, the learned counsel reiterated the findings of the Commissioner (Appeals) where the Commissioner (Appeals) has allowed the be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indirectly, of goods or for rendering services, including those required for replacement, modernization, technological upgradation or expansion. It also includes packaging machinery and equipment, refractories for initial lining, refrigeration equipment, power generating sets, machine tools, catalysts for initial charge, equipment and instruments for testing, research and development, quality and pollution control. Capital goods may be for use in manufacturing, mining, agriculture, aquaculture, animal husbandry, floriculture, horticulture, pisciculture, poultry, sericulture and viticulture as well as for use in services sector. We also find that the definition of capital goods mentioned in para 9.12 of FTP is identical to the above definit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me is to be allowed by customs. Therefore, we hold that the lower authority in his impugned order dated 28.3.2013 has rightly held titanium sheets are capital goods covered under the capital goods definition and the same is eligible under SHIS scrip under Notification No. 104/2009. 12. In the regard, The Tribunal in the case of Reliance Communications Infrastructure Ltd. Vs. CC, Bangalore (supra) held that the definition of capital goods as per FTP is wide and once the policy allows such items it is not open for customs to object that it is only forms part of the capital goods. In the present case we find that the licensing authority themselves have allowed titanium sheets as capital goods in the EPCG license. Once it is held that is capit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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