TMI Blog2023 (3) TMI 885X X X X Extracts X X X X X X X X Extracts X X X X ..... l goods is used is exclusively, cleared under exemption. Reliance placed in the case of ISPAT METALLICS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIGAD [ 2005 (7) TMI 225 - CESTAT, MUMBAI ] where it was held that The word used can denote be intermittent and/or use sometime in future; we find that both sides agree that the appellants are a manufacturer of declared final products Iron and Steel and have the capacity or potential to use iron ore fines also. Therefore credit as over led cannot be denied. In view of the above judgment, an identical issue has been considered that only because the capital goods is used for exempted intermediate goods, the cenvat credit cannot be denied when the final product is cleared on payment of duty. The appellant is entitled for cenvat credit on capital goods in the given facts of the present case - Appeal allowed. - Excise Appeal No. 676 of 2012 With 677 of 2012 And 678 of 2012 - Final Order No. A/ 10272-10274/2023 - Dated:- 9-2-2023 - Hon'ble Member (Judicial), Mr. Ramesh Nair For the Applicant : Shri Anand Nainawati Shri Ishan Bhatt, Advocates For the Respondent : Shri Dinesh Prithiani, Assistant Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f duty. The briquettes are the intermediate product and not cleared under exemption from the factory. Therefore it cannot be said that the plant and machinery were used in manufacture of exempted goods. He placed reliance on the following judgments : Ispat Metallics Ltd vs. CCE Raigad- 2005 (191) ELT 1107 (Tri. Mum) Indira Sahakari Soot Girni Maryadit vs. CCE, Aurangabad- 2017 (2) TMI 667- CESTAT- Mumbai CCE vs. United Phosphorous Ltd 2015 (315) ELT 360 (Guj.) Union of India vs. HEG Ltd 2012 (275) ELT 316 (Chattisgarh) Bharat Forge Ltd vs. CCE, Pune- III 2004 (165) ELT 339 (Tri.- Mum) Rana Sugar Ltd vs. CCE, Ludhiana 2012 (281) ELT 617 (Tri. Del) CCE vs. Sudarsanam Spinning Mills Ltd 2012 (275) ELT 430 (Mad.) 3. Shri Dinesh Prithiani, Learned Assistant Commissioner (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order. He submits that the capital goods on which credit was availed were exclusively used for manufacture of exempted goods i.e. briquettes in terms of Rule 6 (4) of CCR, 2004. Therefore, the appellant is not eligible for the cenvat credit. 4. I have carefully considered the submission made by both sid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rule 3 which states that : - A manufacturer of the final product shall be allowed to take the credit of the duty ....... paid on inputs or capital goods ....... received by the manufacture for use in, or in relation to the manufacture of final product...... The term final product is defined under Rule 2(e) ibid. as follows : final products means excisable goods manufactured or produced from inputs except matches. The term excisable goods is defined in Section 2(d) of the Act as follows : excisable goods means goods specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985, (5 of 1986) as being subject to a duty of excise and includes salt. A harmonious reading of the relevant provision given above makes it abundantly clear that there is no right to take credit, if the final products are not subject to a duty of excise. When the process of conversion of fine ores into briquettes does not amount to manufacture‟ under the Central Excise Act, then nothing in the said Act or Rules made thereunder will apply to the said goods. The position is also clear from the CEGAT judgment in case of Gujarat State Fert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants at a future date. The word used can denote be intermittent and/or use sometime in future; we find that both sides agree that the appellants are a manufacturer of declared final products Iron and Steel and have the capacity or potential to use iron ore fines also. Therefore credit as over led cannot be denied. (d) In this view of the findings, we find no reason and deny the credit on grounds of ineligibility as determined by the lower authority. 3. The appeal consequent to the findings is allowed after setting aside order. Indira Sahakari Soot Girni Maryadit vs. CCE, Aurangabad- 2017 (2) TMI 667- CESTAT- Mumbai 6. In both the judgments viz., judgment of the Division Bench of the Delhi high Court Modi Carperts Limited vs. Union of India 1997 (91) ELT 285 and the judgment of the learned Single Judge of the Bombay High Court - 1992 (61) ELT 566 ( Gokalchand Rattanchand Woollen Mills Pvt. Ltd v. UOI), we find a graphic description of the nature of Silver and we think it might be useful to extract this This sliver is very brittle in nature and is liable to fall apart by handling. It also got entangled if it is not handled gently, thus becomi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viz. Pipes, cables, valve, cooling tower, etc. used in the erection of power plant for generation of electricity by relying upon decision rendered by Chennai Bench of Tribunal in the case of Kothari Sugar Chemicals Ltd. reported in 2006 (196) E.L.T. 35 (T) which has not attained finality and CMA No. 2671/2007 filed against the said decision is admitted and pending for final decision before the Hon‟ble High Court of Madras at Chennai? 3. Having heard the learned counsel for the Revenue and having perused the impugned decision of the Customs, Excise Service Tax Appellate Tribunal, it emerges that the sole issue involved in this Tax Appeal relates to the assessee‟s claim for Modvat Credit on the capital goods used in generation of electricity, which was captively consumed. According to the Revenue, the assessee would not qualify for such credit in view of Rule 57Q of the Central Excise Rules, 1944. The Tribunal, however, relied on the decision of Chennai Bench in case of Kothari Sugars Chemicals Ltd. v. Commissioner of Central Excise, Trichy reported in 2006 (196) E.L.T. 35, held in favour of the assessee. In such decision, the Tribunal had come to the followi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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