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2016 (3) TMI 778 - CESTAT MUMBAI

2016 (3) TMI 778 - CESTAT MUMBAI - TMI - Denial of CENVAT credit on capital goods - Held that:- It is noticed that almost in all cases, the Commissioner has not given any reasons for arriving at the conclusion. He has simply given final conclusion stating that how the same were entitled or not entitled to the capital goods CENVAT Credit. A perusal of the list of the items on which the credit has been denied includes items which have been described as spares in the excise invoice. The items on wh .....

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purpose of reaching the conclusion, the Commissioner will give an opportunity to the appellant to present their case before taking a final decision. - Matter remanded back. - Appeal No. E/3096/05 - A/85729/16/EB - Dated:- 10-2-2016 - SHRI RAMESH NAIR, MEMBER (JUDICIAL) AND SHRI RAJU, MEMBER (TECHNICAL) For the Petitioner : Shri M.P.S. Joshi, Advocate For the Respondent : Shri Ashutosh Nath, Assistant Commissioner (AR) ORDER PER: RAJU The appellants are manufacturer of motor vehicles. During the .....

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for bringing about any change in any substance for manufacture of final product. (b) Hoist -do- (c) Electrodes As at (a) above and the electrodes are itself consumed, it is not toll or appliances or machine parts. (d) Hose pipe and pipe fitting As at (a) above (e) Computer and computer parts As at (a) above (f) Traction Batteries It is used in yal (forklift) which is not capital goods as per (a) above. b) The inputs intimated cannot be considered as CAPTIAL GOODS as per the explanation to Rule .....

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oached the Tribunal, which after considering the matter remanded the issue back to the Commissioner with following observations: - The issue relates to availability of modvat credit on capital goods. It is seen that number of items are involved and the case laws on the capital goods have developed since passing of the impugned order. Both the parties, therefore, agreed that the matter may be remanded to the adjudicating authority for de novo adjudication in light of the decisions cited by the le .....

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d the following case laws in their reply to the Commissioner dated 21.12.2004: - (a) Indian Farmers Fertiliser Co-op. Ltd. - 1996 (86) ELT 177 (SC) (b) Jindal Strips - 2003 (156) ELT 918 (Tri-Mum) (c) Visvesvariya Iron & Steel - 2000 (125) ELT 1171 (Tri) (d) Bajaj Auto Ltd. - 2001 (136) ELT 970 (Tri-Mum) (e) Birla Corporation Ltd. - 2003 (160) ELT 268 (Tri) (f) Baker Mercer Ltd. - 2002 (140) ELT 412 (Tri-Mum) (g) Rajasthan State Chemical Works - 1991 (55) ELT 444 (SC) (h) Jindal Strips Ltd. .....

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sioner has completely relied on the decision of Commissioner of Central Excise, Indore Vs. Surya Roshni Ltd. - 2001 (128) ELT 293 (Tri-LB). He argued that it cannot be a basis of discarding of the case law which they had cited specifically for most of the items covered in the dispute. 2.1 Learned Counsel argued that the credit on the refractors/transformers and pollution control equipments was denied solely on the ground that these items got covered under the definition of capital goods vide Not .....

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odes would qualify as capital goods under Rule 57Q, observed as under: - 41. In the light of the above, the issue as to whether the amendment effected in Notification 11/95, dated 16-3-1995 under Rule 57Q and Notification 14/96-C.E. dated 23-7-1996 is retrospective, becomes academic. We have to decide the matter according to the language of the provision as it stood at the material time. We are required to examine Explanation 1(a) as it stood in 1994-95 and 1995-96 and we therefore, see force in .....

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2001 (45) RLT 739 (SC). It was argued that the Commissioners observation that these items have been included later on, does not mean that the same were not covered under the principal definition of capital goods. 2.2 Learned Counsel pointed out that the Commissioner has disallowed the credit on electrodes on the ground that the same were consumable on the basis of Tribunal s decision in the appellant s own case cited at 1998 (98) ELT 479, where the Tribunal has held that electrodes qualified as .....

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ion can these goods be covered as capital goods during the impugned period . He has denied credit on screw driver, hacksaw stating that by virtue of their name and usage, it is amply clear that by no stretch of imagination can these goods be held to be capital goods, more so in view of the specific definition of capital goods that was prevailing during the impugned period. . He has denied credit on adhesive polycot, lubricating oil stating that these items are entirely consumable in nature. By n .....

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e Sheets, Thermo sheets, ceramic coating, Formica sheet, Promil sheets, PVC pipe on the ground that these goods were not covered under the ambit of capital goods during the impugned period. 3. Learned AR relies on the impugned order. 4. We have gone through the rival contentions. We find that the appellant had cited various case laws in support of their claim but the order of Commissioner does not specifically deal with any of them. We find that the order of Commissioner is based on his assumpti .....

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