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TMI Blog2018 (7) TMI 1940X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise & Customs, Jamshedpur. By the said order, the Commissioner has disallowed CENVAT Credit on capital goods availed by the appellant on the ground that the capital goods in question, being oxygen plant, were leased to the appellant by Praxair India Ltd., and that at any point in time the oxygen gas was in absolute control and possession of Praxair, who was the financing company and at no point in time, Praxair has passed the right to use the said oxygen plant to the appellant and therefore the credit was availed in contravention of Rule 4(3) of the Cenvat Credit Rules, 2002. The Commissioner confirmed the demand of Rs. 1,45,23,933/- under Rule 12 of the Cenvat Credit Rules read with Section 11A of the Central Excise Act, 1944, along w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant in the said factory for manufacture of final products. Since the oxygen manufactured was captively used for manufacture of dutiable final products, the same enjoyed exemption under Notification No. 67/95-CE. (v) On February 24, 2006 the Additional Director General, DGCEI, Kolkata Zonal Unit, issued a show cause notice seeking to disallow the entire credit of Rs. 1,45,23,933/- taken by the appellant, which was confirmed in the impugned order passed by the Commissioner. 3. It is the contention of the appellant that the findings of the Commissioner in the impugned order are erroneous and contrary to settled law on the issues involved. Further, the Commissioner had erred in holding that the capital goods in question were not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requires that the capital goods must be used in the factory of the manufacturer of the final products. From paras 6 and 7 of the Commissioner's order it is seen that it is an undisputed fact that the oxygen plant was set up at the appellant's factory by using the subject capital goods and that the entire production of oxygen was consumed within the appellant's factory for manufacture of dutiable final products. It is further seen that the said capital goods were received in the appellant's factory under cover of central excise invoices in the appellant's name and evidencing payment of duties thereon, thus satisfying the requirements of Rule 3(1) of the Cenvat Credit Rules of the capital goods being received in the factory. 7. From the agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of India Vs. Marmagoa Steel Ltd., 2008 (229) ELT 481 (SC) and decisions of the Hon'ble Punjab & Haryana High Court in CCE Vs. Bright Brothers Ltd., 2009 (236) ELT 660 (P&H) and CCE Vs. Sunrise Chemicals Industries, 2010 (262) ELT 110 (Guj), the Hon'ble High Court held that the Tribunal's decision in Terene Fibres India Pvt. Ltd. Vs. CCE (supra) is of no assistance of the appellant Revenue to carry forward the case made out by it. 10. The contention that cenvat credit on capital goods taken on lease from a company which was not a finance company is not allowable has also been rejected by the Tribunal in a number of decisions while interpreting Rule 4(3) of the Cenvat Credit Rules. In this connection reference may be made to the followin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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