TMI Blog2003 (2) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore alleged that the provisions of sub-rule (2) of Rule 57R would provide a protection only in respect of intermediate goods which were exempted or chargeable to 'Nil' rate of duty and did not cover non-excisable goods or immovable property. 2.The Commissioner passed the impugned order, holding that the power plant was a marketable product and therefore excisable goods; that the said power plant being used within the factory of production was exempt from payment of duty vide Notification No. 67/95-C.E., dated 16-3-1995 as amended. The Commissioner therefore held that since the power plant was exempt from payment of duty, the Modvat credit is available in view of the provisions of sub-rule (2) of Rule 57R of the Central Excise Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exempted intermediate products [vide main provision of sub-rule (2)] but only if these find a mention in the table referred above, the Modvat credit shall not be denied. (b) The interpretation given by the Commissioner shall reduce the proviso to a nullify if intermediate items not mentioned in the table as a final product were to qualify the related capital goods as available for credit. (c) Rule 57R(2) of the Central Excise Rules, 1944 only specifies the conditions under which the credit should not be varied or denied provided the intermediate goods are specified as final products in Annexure to Rule 57Q(1). It is thus clear that for electricity as on intermediate product to qualify its related capital goods for credit s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which credit is taken are assembled into an immovable property, credit cannot be denied on the ground of the immovable property being non-excisable goods : (a) Lloyds Metals Engineers Ltd. v. CCE, Nagpur - 2002 (150) E.L.T. 638. (b) United Phosphorus Ltd. v. CCE Cus., Vadodara - 2002 (150) E.L.T. 650. Following the same, there is no case made out ab initio. (c) The ground taken in the present appeal that since electricity is a non-excisable intermediate product which is therefore not specified as a final product under Rule 57Q and hence Modvat credit is not available was not a ground set out in the show cause notice and therefore this ground is liable to be not considered being beyond the proceedings. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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