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2016 (6) TMI 466 - CESTAT ALLAHABAD

2016 (6) TMI 466 - CESTAT ALLAHABAD - 2016 (337) E.L.T. 445 (Tri. - All.) - Entitlement of Cenvat credit - Hot Strip Mill Plates, Flat, STRL, Plate, Mill Plates, M.S.Channel, Angles, Joists, Chequered Plates and Beam and Joist etc. - utilized in fabrication of Bio-Gas Plant-a Pollution Control Equipment - Held that:- as bio-gas plant is a pollution control equipment defined in rule 2 (a)(A)(ii) of Cenvat Credit Rules, 2004, the appellant have rightly taken credit, being entitled to the same. Fur .....

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urer cannot take place of excisable goods being Sugar et cetera, without repair and maintenance of capital equipment like sugar Cane cutter et cetera, I hold that the appellant is entitled the cenvat credit on the same. Therefore, the impugned orders are set aside. - Decided in favour of appellant with consequential relief - Ex. Appeal Nos. 280 And 2904/2010 - Final Order Nos. A/70041-70042/2016 - Dated:- 30-11-2015 - Anil Choudhary, Member (J) For the Appellant : Shri Pradeep Kumar Mittal, Adv .....

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oists, Chequered Plates and Beam and Joist etc. falling under Chapter 72 of Central Excise Tariff Act, 1985, which were utilized in fabrication of Bio-Gas Plant-a Pollution Control Equipment. 3. Vide the impugned order in appeal dated 18/11/2010, the ld. Commissioner (Appeals) has observed that the adjudicating authority have held that Bio-gas plant is not any excisable goods being immovable and unmarketable, hence it cannot be considered as capital goods. Further, he held that the impugned good .....

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nch has held that foundation and supporting structures embedded to earth can be categorised as "capital assets" but shall not qualify as "capital goods" as per definition in Cenvat credit Rules 2004. The ld. Commissioner (Appeals) however, reduced the penalty to ₹ 2,50,000/- under Rule 15 (1) of Cenvat Credit Rules, 2004, but confirmed the disallowance of Cenvat credit with interest. In the impugned order dated 30/9/11 for the period May, 2008 to December 2009, on simil .....

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er and Lamella, which are integral part of biogas plant. He further draws my attention to the facts that in the show-cause notice, it was proposed to disallow the cenvat credit on the ground that the structural steel items have been used in fabrication of bio-gas plant, which is further used in generation of bio-gas to be captively consumed as a fuel for generation of electricity, an exempted product, hence, cenvat credit is not available. Whereas going beyond the scope of show-cause notice, in .....

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in their own case in Ex.Appeal Number 99 of 2011 (SM) wherein under similar facts and circumstances, the credit was taken on MS angles, channels, joists, GP Sheets, et cetera, used in fabrication of a new multi-effect evaporating plant to substantially reduce the quantity of affluent in the distillery and the credit was disallowed, as the revenue was of the view that the steel items in question are not eligible for Cenvat credit. This Tribunal relying on the ruling of Honourable Karnataka High .....

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any item of machinery or equipment which has either been fabricated in the factory or has been brought to the factory, would after installation, become fixed to the earth and, therefore, under such circumstances, the Cenvat credit cannot be denied. It is further held that it is not material that after installation machinery becomes immovable by being fixed to earth. The ld. Counsel further relies on the ruling of the Honourable Allahabad High Court in the case of Majhola Distillery and Chemical .....

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he various items, bio-gas plant was to be fabricated, commissioned and erected at site. The ld. Counsel further urges that the ruling of the Larger Bench of this Tribunal in the case of on the Vandana Global, have been distinguished and deferred in several rulings, subsequently by this Tribunal and also by Honourable High Courts. The ld. Counsel also relied on judgement of this Tribunal in the case of Commissioner of Central Excise, Nagpur Vs. Lloyds Metals & Engg. Ltd.: 2014 (309) ELT 533 ( .....

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have been used for setting up capital goods. Accordingly, following the ruling of the Apex Court, as it overides on the Larger Bench ruling of this Tribunal in Vandana Global's case (supra), it was held that assessee is entitled for Cenvat credit on the items in question used for setting up capital goods like kiln, cooler and chimney. The ld. Counsel also stated that a small part of the total inputs, have been utilized, say about 15 to 20% in repair and maintenance of capital goods which are .....

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