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2017 (4) TMI 1280

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..... re of goods is not contained in the Act, and is otherwise not a relevant consideration, there survives no other ground of challenge to the order of the Tribunal. - credit allowed - decided against Revenue. - Sales/Trade Tax Revision No. - 99 of 2017 - - - Dated:- 19-4-2017 - Ashwani Kumar Mishra, J. For The Applicant : Bipin Kumar Pandey For The Opposite Party : Nishant Mishra ORDER Hon ble Ashwani Kumar Mishra, J. This revision is by the revenue questioning an order passed by the Tribunal dated 16. 12. 2016, whereby the claim of input tax credit by the assessee, in respect of goods utilized for construction of silo, has been disallowed. Challenge is essentially based upon the definition of capital goods c .....

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..... ( iv) pollution control equipment; ( v) refractory and refractory materials; ( vi) tubes and pipes and fittings thereof; ( vii) lab equipments, instruments and accessories ( viii) machinery, loader, equipment for lifting or moving goods within factory premises; or ( ix) generator and boiler, used in manufacture of goods for sale by him but for the purpose of section 13, does not include:- ( i) air-conditioning units or air conditioners, refrigerators, air coolers, fans, and air circulators if not connected with manufacturing process; ( ii) an automobile including commercial vehicles, and two or three wheelers, and parts, components and accessories for repair and maintenance thereof; .....

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..... onal to import the concept of movable or immovable goods while interpreting Section 2 (f) of the Act, when the provision does not say so. The Tribunal has placed reliance upon the decision of Apex Court in Commissioner of Central Excise, Coimbatore and others Vs. Jawahar Mills Ltd. and Others, (2001) 6 SCC 274, which dealt with grant of MODVAT credit to capital goods under the Central Excise Act. The explanation 1 to Rule 57 (q) defines capital goods which is similar to the definition of capital goods in the U. P. VAT Act. The Apex Court has been pleased to observe as under in paragraph 4 and 6 of the judgement:- 4. The aforesaid definition of Capital goods is very wide. Capital goods can be machines, machinery, plant equipment, .....

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..... Rohtagi fairly and very rightly did not seriously dispute that if any of the items enumerated in Explanation (1)(a) is used for any purpose mentioned therein for the manufacture of final products, it would satisfy the test of Capital goods . The main contention of Mr. Rohtagi, however, is that the question whether an item falls within the definition of Capital goods would depend upon the user it is put to. The submission is that parts of the items in respect whereof availing of MODVAT credit has been allowed by the Tribunal could not be treated as Capital goods as the manufacturer could not establish that the entire item was used in the manufacture of final product. To illustrate his point, Mr. Rohtagi submitted that part of a cable ma .....

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..... in a subsequent decision in Commissioner of Central Excise, Jaipur Vs. Rajasthan Spinning and Weaving Mills limited, (2010) 12 SCC 186. Attention of the Court is also invited to a judgment of a Division Bench of Karnataka High Court in Commissioner of Central Excise, Bangalore-II Vs. SLR Steels Ltd, 2012 (280) E. L. T. 176. The Court was dealing with a similar provision occurring under Rule 2 (a) of the Cenvat Credit Rules, 2004 in the context of storage tank embedded to earth. After examining the provisions, the Division Bench has taken a view that storage tank embedded in the earth also forms part of capital goods, if it is otherwise being utilized for manufacture of goods. Reliance is also placed upon other decisions, wherein similar vie .....

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