TMI Blog2022 (6) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... atus, tools or appliances, etc., are generally understood to be movable property, would not mean that plant also has to be necessarily treated as movable property only. There does not appear to be any rational to import the concept of movable or immovable goods while interpreting Section 2(f) of the Act, when the provision does not say so. Appeal allowed - decided in favor of appellant. - Excise Appeal No. 991 of 2012, Excise Appeal No. 1000 of 2012, Excise Appeal No. 1153 of 2012, Excise Appeal No. 1154 of 2012 - A/85386-85389/2022 - Dated:- 3-3-2022 - MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) AND MR. P. DINESHA, MEMBER (JUDICIAL) Shri Rajesh Ostwal, Advocate, for the Appellant Shri Sydney D Silva, Additional Commissioner and Shri N.N. Prabhudesai, Superintendent, Authorised Representatives for the Respondent ORDER These appeals have been filed by the appellant against the orders as detailed in the table below:- Appeal No. Period in dispute Show Cause Notice date Impugned order date Amount of credit (in Rs.) Penalty imposed (in Rs.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TIOL-1943-CESTAT- MUM] Monnet Ispat Energy Ltd. [2015-TIOL-2850- CESTAT-DEL] Cenvat credit in respect of cement and iron and steel items used in manufacture of storage tank is available. OCL India Ltd. [2018 (1) TMI 155-CESTAT KOLKATA] Singhal Enterprises Pvt. Ltd. [2016 (9) TMI 682- CESTAT NEW DELHI Ultratech Cement Ltd. [2017 (6) TMI 796 CESTAT BANGALORE Mangalam Cement Ltd. [2018 (3) TMI 1547- CESTAT NEW DELHI Ramco Cements Ltd. [2019 (5) TMI 129-CESTAT CHENNAI Dalmia Cements (Bharat) Ltd. [2015 (330) ELT 645 (T)] affirmed by Madras High Court [2017 (356) ELT 201 (Mad.) Gujarat Ambuja Cement Ltd. [2008 (6) TMI 213- HIGH COURT OF HIMACHAL PRADESH OCL India Ltd. [2018 (7) TMI 310-CESTAT KOLKATA Ambuja Cement Ltd. [2018 (8) GSTL 161 (All.)] Amendment to Explanation 2 of Rule 2(k) of Cenvat Credit Rules, 2004 with effect from 7.7.2009 was prospective. Vandana Global Ltd. [2010 (253) ELT 440 (T)] Mundra Ports Special Economic Zone Ltd. [2015 (39) STR 726 (Guj.) Capital goods becoming immovable property is irrelevant. Sai Sahmita Storages (P) Ltd. [2011 (270) ELT 33 (AP)] Vodafone Mobile Services Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) ELT 200 (All.)] They further pointed out that in the appellant s own case, the Tribunal has remanded the matter back to the original authority. 4.1 We have considered the impugned orders along with the submissions made in appeal and during the course of argument. 4.2 We find that the issue involved in this matter is squarely covered by the decision of the Tribunal vide final order No. A/87273/2021 dated 01.12.2021 in appellant s own case. In paras 5 6, the Tribunal has held as follows:- 5. Considering the fact that the matter which has been remanded on 20th June 2013 is still pending and thereafter, the issue has been considered by this Tribunal and finally settled in the case of Monnet Ispat and Energy Ltd (supra) wherein this Tribunal has observed that 7. These steel items used in this manner by the appellant has not been factually disputed. However, the point of dispute is that the resultant fabricated items became part of structures which are embedded to earth and become immovable, thereby losing the name of goods . Hence, Revenue contends that these items used are outside the purview of capital goods or inputs. We find that the Hon ble Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equipment constitutes capital goods and any raw material purchased for construction of those goods, the duty paid could be utilized as a Cenvat credit by the assessee notwithstanding the fact that the storage tank is an immovable property. 8. The Hon ble Madras High Court in the case of CCE v. India Cements Ltd. [2014 (310) ELT 636 (Mad.)] held that MS plates, angles, channels, etc. used in the erection of various machineries such as electrostatic precipitator for raw mill project, additional fly ash handling system, MMD crusher, etc. can be considered as eligible for Cenvat credit as component of capital goods. The Hon ble High Court held after examining the various case laws in favour of assessee. Applying this principles, we find that the allegation in the show cause notice that steel items used by the appellant are neither components nor spares nor accessories is not sustainable. 6. As the facts of the case are not in dispute that the steel items in question has been used for fabrication of the capital goods which has ultimately been used for manufacture of their final product, in that circumstances, we hold that the appellant are entitled to CENVAT credit on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee for the purpose of construction of iron/coke storage tank, gas storage tanks are capital goods for the purpose of constructing iron/coke and that these inputs being used for pollution control equipments hence the assessee was entitled for Cenvat credit. The Court considered the storage tank as capital goods as the storage tanks were used as pollution control equipments and as pollution control equipments were directly falling under Rule 2(a)(A)(ii) of the Credit Rules. The Court came to a conclusion that once storage tank and pollution control equipments constitute capital goods the duty paid on any raw material purchased for construction of those goods could be utilised as a Cenvat credit by the assessee notwithstanding the fact that the storage tank is an immovable property. However, the facts in the present case are quite different. The towers are not capital goods under the definition of capital goods as defined in Rule 2(a) of the Credit Rules being immovable and are non- excisable. This judgment is therefore of no assistance to the appellants. We are, however, unable to perceive the impact of this judgment on the resolution of the present dispute as the Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ast contention canvassed by the learned counsel that the Tribunal is not correct in holding that the assessee failed to establish that the steel structures are components of the capital goods as specified in the Table below Rule 57Q of the Rules and, therefore, are not eligible for exemption under the notification. This issue requires to be answered with reference to Circular No. 276/110/96-TRU, dated 2-12-1996 issued by the C.B.E.C. The relevant portion of the Circular is as under :- 3. The matter has been examined. With effect from 23-7-1996, capital goods eligible for credit under Rule 57Q have been specified either by their classification or by their description. Clauses (a) to (c) of Explanation (1) of the said rule cover capital goods by their classification whereas clause (d) covers goods by their description viz, components, spares and accessories of the said capital goods. It may be noted that there is a separate entry for components, spares and accessories and no reference has been made about their classification. As such, scope of this entry is not restricted only to the components, spares and accessories falling under Chapters 82, 84, 85 or 90 but covers all compo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, 2004. The reliance placed by the Larger Bench of the Tribunal on this very judgment, while disposing off the reference in re Tower Vision India Pvt Ltd, also pertains to rendering of output service and not for manufacture. It cannot but be stated, even at the cost of repetition, that manufacturing activity is carried out in factory premises with capital goods essential for the processing; that storage tanks , by specific inclusion in the enumeration, are not subject to further evaluation against the benchmarks of excisability. In the absence of any other restriction, it is not open to central excise authorities to distinguish between the storage tanks , by reference to its dutiability under Central Excise Act, 1944, when storage tanks are distinctly enumerated in the definition itself. 4.4 Learned AR relied upon the decision in the case of the appellant vide final order No. A/535/13/EB/C-II dated 20.06.2013. In the said decision, the Tribunal has observed as follows:- 3.The contention of the appellants is that the appellants are engaged in the manufacture of cement. The appellants set up a cement packing plant at Cochin during the period November 2008 to Marc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re used for fabrication of capital goods such as silo which is used for storage of the loose cement received in the plant, bag filters, packer, air slide, collecting hopper, bulk loading system, conveyor system etc. The capital goods received in the plant are transformers, DG set, bag filters, control panel etc. The contentions raised by the appellants that the inputs are used for the fabrication of capital goods which are further used in the manufacture of excisable goods are not taken into consideration by the adjudicating authority. The adjudicating authority has decided the issue simply on the ground that the plant is immovable and not excisable, therefore the credit in respect of the capital goods, inputs used in the manufacture of capital goods and input services is not admissible. The appellants produced evidence in respect of the use of each item before the adjudicating authority, which has not been taken into consideration while passing the impugned order. In these circumstances, the matter requires reconsideration by the adjudicating authority. The impugned order is set aside and the matter is remanded to the adjudicating authority for de novo adjudication and the adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms, Excise and Service Tax Appellate Tribunal (CMA 3814/2014 and connections) decided on 10-7-2017 [2017 (355) E.L.T. 373 (Mad.)] to conclude that the said amendment cannot be treated as clarificatory. M/s. Thiruarooran Sugars also considered the issue as to the effect and fundamental value of the evidentiary statement made by the Finance Minister dealing with an amendment in the budget speech. 4.6 In appellant s own case reported at [2018 (8) GSTL 161 (All.), Hon ble Allahabad High Court held as under:- 5 . A perusal of the definition of capital goods clearly goes to show that plant, machine, machinery, equipment, apparatus and tools or appliances and electrical installation, which are used for manufacture or processing of any goods for sale by the dealer, would be included. The parties are not at issue on the factual proposition that goods used herein, are utilized for manufacture or processing of goods sold by dealer. The mere fact that machine, machinery, equipment, apparatus, tools or appliances, etc., are generally understood to be movable property, would not mean that plant also has to be necessarily treated as movable property only. There does not appear to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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