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TMI Blog2023 (11) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... in March, 2001 and balance 50% along with credit of Rs.27,018/- & Rs.1,57,739/- totaling to Rs.99,62,687/- in April 2001. The goods were received during the period 1997-98 to 1999-2000. Alleging that the Credit availed on the goods do not satisfy the definition of 'capital goods' and hence not admissible, two show cause notices were issued to them on 05.04.2002 and 24.04.2002 (for short 'first notice' & 'second notice') for recovery of the said credit of Rs.97,77,913/- and Rs.99,62,687/-, respectively with interest and proposal for penalty. On adjudication, by two separate Orders both dated 29.11.2002 the adjudicating authority confirmed demand of Rs.86,37,120/- with interest and imposed penalty of Rs.5,00,000/- and allowed Cenvat Credit of Rs.11,40,793/- against the first Notice; confirmed demand of Rs. 86,64,13/- with interest and penalty of Rs.5,00,000/- and allowed Cenvat Credit of Rs.12,98,552/- against the second Notice. Aggrieved by the said orders, the appellants filed appeals before the ld. Commissioner (Appeals), who upheld the order of the adjudicating authority. Aggrieved by the said orders of ld. Commissioner (Appeals), the appellants filed appeals before the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in the case of CCE, Jaipur vs. Rajasthan Spinning & Weaving Mills Ltd - 2010 (255) ELT 481 (SC) held that credit on such items is admissible. 3.4 Further, referring to Board's Circular No. 276/110/96-TRU dated 02.12.1996, he has submitted that the items mentioned in the aforesaid table fall under the scope of entry "components, spares and accessories" in the definition of capital goods under Rule 57Q of erstwhile Central Excise Rules, 1944; it is not restricted only to the components, spares and accessories falling under Chapter 82, 84, 85 and 90, but covers all components, spares and accessories of specified goods irrespective of their classification. 3.5 Further, he has submitted that the items such as carbon steel plates, HR plates, chequered plates, plain plates, angles, channels, joists, MS CTD bars etc are used to properly support and connect the various machineries, which are indispensable for manufacturing of the final product, hence, qualify as components/spares/accessories of the goods falling under Chapter 82, 84, 85 and 90. It is his contention that the 'user test' laid down by the Hon'ble Supreme Court in the case CCE, Coimbatore vs. Jawahar Mills Ltd. 2001 (132 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as the same are used in firefighting equipment being an essential requirement in a petroleum refinery, thus, used in or in-relation to the manufacture of final product. 3.12 Further, he has submitted that since there is no evidence of suppression of facts, levy of interest under Section 11AB is incorrect and to be set aside. 3.13 The ld. Advocate referred following case-laws in support of his submission: a) Thiru Arooran Sugars vs. CESTAT, Chennai - 2017 (355) ELT 373 (Mad.) b) Nava Bharat Ferro Alloys Limited vs. CC & CE, Hyderabad-III - 2017 (358) ELT 145 (AP) c) CGST, Lucknow vs. DSCL Sugar - 2019 (367) ELT 836 (All.) d) M/s Bajaj Hindusthan Limited vs. CCE ST, Meerut-I - 2018-TIOL-415-CESTAT-ALL e) M/s KLJ Plasticizers Ltd vs. CCE ST, Vapi - 2017-TIOL-2574-CESTAT-AHM f) Mundra Ports & Special Economic Zone Ltd vs. CCE & Cus - 2015 (39) STR 726 (Guj.) g) CCE, Jaipur vs. Rajasthan Spinning & Weaving Mills Ltd - 2010 (255) ELT 481 (SC) h) UOI vs. ACC Ltd - 2011 (267) ELT 55 (Chhattisgarh) i) CCE & Cus, Visakhapatnam vs. Rashtriya Ispat Nigam Limited - 2011 (267) ELT 311 (AP) j) CCE, Hyderabad-I vs. Hyderabad Chemical Products Ltd - 2009 (243) ELT 580 (Tri. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed is inadmissible under the statutory provisions as it existed during the relevant period. 4.4 Further, he has submitted that eligibility to Modvat credit/ Cenvat credit is with reference to the date of receipt of the goods on which credit is being availed, whereas for recovery of ineligible credit, it is the date of availment/ utilization of such credit. In support, he relied on the following case-laws: a) Spenta International Ltd vs CCE, Thane - 2007 (216) ELT 133 (Tri. LB) b) CCE, Surat vs Aneri Construction - 2012 (286) ELT 639 (Tri. Ahmd.) c) ACC Ltd vs CCE, Chandigarh - 2010 (256) ELT 148 (Tri. Del.) d) ABC Engineering Works vs. CCE, Guntur - 2010 (20) STR 145 (Tri. Bang.) 4.5 Further, he has submitted that the present matter be decided in accordance with the existing provisions as on the date of availment of credit and not under Cenvat Credit Rules, 2002/2004, since the receipt of the goods was between 1997-2000. 4.6 Further, he has submitted that the appellants had wrongly availed Modvat credit on various goods namely MS CTD bars, TCR steel, rounds, joists, angles, channels, seamless steel tube, parts of structures, paints and varnish, foam, asbestos, ceramic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Appellant is unacceptable. He has submitted that the said Order was relating to the period March, 2000 i.e. for a different period and the law concerned to the same was amended and amended provisions were considered and the credit was allowed; whereas in the present case, the period covers 1997 to 2000, hence, the said order is not applicable. 4.9 Further, he has submitted that 'res judicata' and 'estoppel' are not applicable to tax matters. In support, he referred to the following judgments: a) Tata Chemicals Ltd vs. CC (Prev.), Jamnagar - 2015 (11) SCC 628 b) Krishna Rai vs. Banaras Hindu University - 2022 (8) SCC 713 c) Punjab Bone Mills vs. CCE, Chandigarh - 2001 (135) ELT 1377 (Tri. Del.) d) CCE, Tiruchirapalli vs. Indian Hume Pipe Co. Ltd vs - 2009 (238) ELT 230 (Mad.) e) Hindalco Industries Ltd vs. CCE, Belapur - 2014 (308) ELT 472 (Tri. LB) 5. Heard both sides and perused the records. 6. The issue involved in present appeals for determination is: admissibility of CENVAT Credit availed on various items declaring the same as 'capital goods' in March and April 2001 under erstwhile Rule 57Q/57AA of Central Excise Rules, 1944. 7. We find that this is the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the factory of the manufacturer of the final products; (vii) storage tank. Explanation. - For removal of doubts, it is hereby clarified that "capital goods" do not include any equipment or appliances used in an office. (b) "exempted goods" means goods which are exempt from the whole of the duty of excise leviable thereon, and includes goods which are chargeable to "Nil" rate of duty; (c) "final products" means excisable goods manufactured or produced from inputs, except matches; (d) "input" means all goods, except high speed diesel oil and motor spirit, commonly known as petrol, used in or in relation to the manufacture of final products whether directly or indirectly and whether contained in the final product or not, and includes accessories of the final products cleared along with the final product, goods used as paint, or as packing material, or as fuel, or for generation of electricity or steam used for manufacture of final products or for any other purpose, within the factory of production, and also includes lubricating oils, greases, cutting oils and coolants. Explanation 1. - The high speed diesel oil or motor spirit, commonly known as petrol, shall not be treated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of steel plates and MS channels used in the fabrication of chimney installed in the factory premises. It was argued by the Revenue that steel plates and MS channels classifiable under Chapter 7208.11 and 7216.10 of CETA,1985 cannot be considered as capital goods, hence, credit is inadmissible on the said items. The Hon'ble Supreme Court analysing Rule 57Q and following the 'user test' laid down in Jawahar Mills's case(supra), held that MS channels, steel plates and angles used in fabrication of chimney would fall within the definition of capital goods. This judgment of Hon'ble Supreme Court has been followed in a series of judgments by various High Courts and the Tribunal viz. India Cements Ltd and UOI vs. Associated Cement Company Ltd (supra). Their Lordships in Rajasthan Spinning & Weaving Mills Ltd 's case observed as follows: "12. Inter alia observing that capital goods can be machines, machinery, plant, equipment, apparatus, tools or appliances if any of these goods is used for producing or processing of any goods or for bringing about any change in the substance for the manufacture of final product, although this view was expressed in the light of the afore-noted definit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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