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TMI Blog2008 (12) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Revenue against the following Orders-in-Appeal, passed by the Commissioner of Central Excise and Customs (Appeals), Guntur. The duty and penalty amounts involved in these cases are also shown against each:- S/No. Appeal No. Order-in-Appeal No. date Duty (Rs.) Penalty (Rs.) 1. E/199/2008 71/2007 (G) CE dt. 28-12-2007 2,55,816/- 2,55,816/- 2. E/200/2008 73/2007 (G) CE dt. 28-12-2007 1,35,456/- 1,35,456/- 3. E/201/2008 72/2007 (G) CE dt. 28-12-2007 1,05,162/- 1,05,162/- 2. The issue involved in all these appeals is one and the same. Hence I am taking up the same together for the disposal as per law. Heard both the sides in the matter. 3. The Respondents are engaged in the manufacture of Sugar Caustic Potash, Sulphuric Acid, etc. which are excisable goods. They are falling under the Cenvat Credit Scheme. The point at issue is that they had availed Cenvat credit to the extent indicated above on cement used in construction of civil foundation as structural support to plant and machinery for the purpose of modernization and expansion of existi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... building is a 'Plant' within the meaning of Rule 13 (words in italics of sales tax Act), the Hon'ble Supreme Court in the case of J.K. Cotton Spg Wvg Mills Co. Ltd. v. Sales Tax Officer, Kanpur - 1997 (91) E.L.T. 34 (S.C.) has observed that 'Building materials used as raw materials for construction of plant cannot be said to be used as plant in the manufacture of goods. The legislature has contemplated that, for the goods to qualify under Section 8(3)(b) (words in italics of Sales Tax Act), it must be intended for use as raw materials or as plant, or as equipment in the manufacture or procession of goods, it cannot be said that building materials fall within this description (para 11). (b) In case of Quality Steel Tubes (P) Ltd. v. CCE, U.P. - 1995 (75) E.L.T. 17 (S.C.), the Hon'ble Supreme Court has held that erection and installation of plant cannot be held to be excisable goods. The court further commented that if such wide meaning is assigned, it would result in bringing in its ambit, structures, erections and installations which would not be in consonance with the accepted meaning of excisable goods and its excisability to duty. (c) In the case of Union of India v. M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 944 and credit was denied. (e) CCE, Noida v. DSM Ltd. [2003 (162) E.L.T. 987 (Tribunal - Delhi) wherein it has been held fn this case, that MS Sheets, angles, joints and sections and HR coils being used for fabrication of steel structurals, shapes etc. are not to be treated as parts, accessories, components of any machines for the purposes of Modvat credit under Rule 57Q. (f) Indo Nissan Foods Ltd. v. CCE, Delhi [2003 (151) E.L.T. 664] wherein it has been held that steel supports provided to chimney are not eligible capital goods but are only building materials and therefore Modvat credit is not allowed under Rule 57Q. (g) CCE, Indore v. Narmada Sugars Ltd. [2003 (155) E.L.T. 362 (Tri. - Del.)] wherein it was held that as per the provisions of Rule 57Q only machine, machinery and parts thereof used in or in relation to the manufacture of final products fall within the definition of capital goods. The platform constructed to facilitate the installation of the machinery for the production of final product could not be said to be part and parcel of the machinery and held that credit was ineligible. (h) Binani Cements Ltd. v. CCE, Jaipur [2003 (160) E.L.T. 163]. In this case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gar would come under serial (i) and therefore, the cement should be considered as accessory which would fall under serial (iii). He invited my attention to the definition of 'inputs' services only to emphasis the point that the services used in relation to modernization, renovation and repairs of factory premises of provider of output service are entitled for Cenvat credit on the service tax payable. If that is so, he asked as to why the material used for modernization of plant could not be given Cenvat credit. He also invited my attention to the following decisions which deal the meaning of accessories:- (i) Mehra Bros. v. Joint Commercial Officer [1991 (51) E.L.T. 173 (S.C.)] (ii) United Copies (India) Pvt. Ltd. v. CST [1997 (94) E.L.T. 28 (S.C.)] He stated that the Tribunal in the case of Bhushan Steel Strips Ltd. v. CCE [2008 (223) E.L.T. 517 (T-Mum.)] has held that the cement used in the factory for foundation of machine, plant, etc. and in tanks, cellars as well as other structures would be entitled for Cenvat credit as they are support of capital goods/component of plant. In the case of Lloyds Steel Industries Ltd. v. CCE, 2007 (211) E.L.T. 275 (T. - Mum) also it was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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