TMI Blog2015 (12) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 200506 they set up a new plant for the manufacture of Iso Propyl Alcohol (IPA). They fabricated and erected 4 mounded storage bullet (storage tank) for storage of raw material and by-product. The appellant availed CENVAT credit of input items like steel plates used for fabrication of storage tank. They took credit on angles, channels, coils used for fabrication of tanks to store water. They also took CENVAT credit on foundation bolt used for installation of these stack and aluminium sheets used for thermal insulation of pipes, tubes, machines. The appellant by the aforementioned letter dated 12/7/05 duly informed the Supt. of the range, which letter was acknowledged by the Inspector in the range office, wherein it is categorically informed that the appellant is taking CENVAT credit of duty paid on inputs like steel plates, foundation bolt, HR steel coils, M.S. angles, channels, C.R. Sheets, etc. used in the fabrication of capital goods in the IPA Plant. It was also informed that the appellant is also taking credit of duty paid on capital goods, spares, components and accessories used in the IPA Plant/factory. Again by letter dated 20/3/06 the appellant further informed the conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise Tariff Act, 1985, as capital goods. But they have not used these in the manufacture of capital goods as discussed above. They availed the CENVAT Credit of duties paid on those goods that were not capital goods within the meaning of Rule 2(a) of CENTRAL EXCISE RULES 2004, by suppressing the facts from the department with intent to avail inadmissible CENVAT Credit and utilise the same subsequently, for payment of duty on the clearance of their final products. From the terms and condition recorded in the Purchase Order No. placed on Fabtech Engineers, it is clear that the Fabtech Engineers were to source the entire material and provide all required services including the aforesaid Steel Plates to fabricate the mounded storage bullets at the site of the assessee and Fabtech Engineers were to receive the agreed amount as consideration for the entire materials and services consumed for completion of the job. Passing on the excise invoices by Fabtech Engineers evidencing the payment of excise duties on Steel Plates in favour of the assessee, and the assessee availing CENVAT Credits on such steel plates as capital goods, itself, shows the intention on the part of the assessee to av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods like steel plates, channels, angles foundation bolt, Aluminium coils etc., came to the knowledge of the department only after the audit was conducted. The respondents have relied upon the letters dated 12.07.05 20.03.06 as evidence that they had brought the facts to the notice of the Department. However on perusal of the said letters nowhere it is observed that the respondents have intimated the availment of credit on items like Aluminium coils, MS angles as inputs which will be used in the erection installation of immovable mounded storage bullets. Moreover they have intimated the taking of credit of duty paid on capital goods which will be used in factory when in fact now they claim the same to be inputs used for the so called capital goods but have availed the same as credit of capital goods. Thus by informing the taking of 50% of CENVAT credit on capital goods, the respondent have only informed the availment of credit of capital goods procured for manufacture of their final product. They have thus misguided the department now claim the same to be inputs. Hon ble Tribunal in the case of M/s Globe Iron Foundry V/s Commissioner of Central Excise, Kolkata II (2012 (27 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se Customs, Pune - 2001(133) ELT 749 (Tri - Mumbai) appellant being a company having huge turnover, aware that goods manufactured for captive consumption not eligible for Modvat credit Extended period invocable, appellant having clearly violated provisions of law in not filing the classification lists. The respondents being a well-established, large scale and have been operating with the Central Excise authorities for several years, it is least expected from them that they would be circumventing the law. 5. The learned A.R. have relied on CBEC order No. 58/1/2002CX dated 15012002 wherein it is provided in para-5 (IPA Plant) huge tanks made of metal for storage of petroleum products in oil refineries on installations these tanks though not embedded in the earth are erected at site, stage-by-stage and after completion they cannot be physically moved. On disposal they have necessarily to be dismantled and sold as metal sheets/scrap. It is not possible to assemble the tank once again. Such tanks, therefore, not liable and cannot be considered movable goods. Further reliance is placed on instruction No. 267/11/2010CX dated 08.07.2010 wherein with respect to availability of CENV ..... X X X X Extracts X X X X X X X X Extracts X X X X
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