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TMI Blog2010 (6) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... raised due to disallowance of Cenvat credit in respect of tower and parts thereof as well pre-fabricated buildings claimed to be capital goods or alternatively as input used for providing cellular service. Learned Adjudicating authority adjudicating three show-cause notices and also examining the averments of the appellant, framed the issue in para 28 of the order-in-original to decide whether the Cenvat Credit is admissible on tower and parts thereof as well as pre-fabricated buildings and antenna. He did not raise any demand on antenna allowing Cenvat credit claimed on that item. 2. In so far as the Cenvat credit claimed by the appellant on tower and parts thereof is concerned, learned Commissioner dealt that aspect in para 29 of the order and negated claim of the appellant in para 29(a) of the order holding that not to be capital goods. According to him the items to be eligible to cenvat credit as capital goods should be covered under Chapters 82, 84, 85, 90, 68.02 and sub heading No. 6801.10 of the First Schedule to the Central Excise Tariff Act, 1985. But the tower not falling in any of the above tariff entries do not qualify to be capital goods for claim of Cenvat credit. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... building shall be nearly Rs. 4.3 crores. He also submitted that the appellant does not prefer to claim Cenvat credit on cement and steel. Following the previous stay order passed by the Tribunal in the case of the same appellants in terms of order passed in Stay application No. ST/S/587/07 (arising out of the Appeal No. ST/49/07) on 1-5-2007 there should be stay of realization of the demand in question under the present appeal. His further submission is that the department having stated in the show cause notice under para 4 that the tower is not capital goods, it should then fall under the category of input. The Tribunal when passed an order on 21-9-2005 in the case of CCE v. Ispat Industries Ltd., [2009 (195) E.L.T. 164 (Tri.-Mumbai)] with the finding that the angles, channels, plates, etc. being structural items for the machinery makes the machines functional without any vibration or movement entitles the assessee to avail modvat credit as capital goods in the said decision and against that decision Revenue's appeal was dismissed by Hon'ble High Court of Bombay in Central Excise Appeal No. 187 of 2006, this appellant is entitled to the credit on such capital goods. Simila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n terms of para 29(c) of the order-in-original. 8. Ld. DR appearing on behalf of the Revenue also submitted that with the passage of time there is clear pronouncement of law by Apex Court and Larger Bench. The law as understood at the time of passing of the stay order in the case of the same appellant on 1-5-2007 and others thereafter has undergone radical change by pronouncement of the law by Apex Court in the case of Maruti Suzuki Ltd. v. CCE, Delhi - 2009 (240) E.L.T. 641 (S.C.) and the Larger Bench decision in the case of Vandana Global Ltd. Others v. CCE [2010 (253) E.L.T. 440 (Tri.-LB) = 2010-TIOL-624-CESTAT-DEL-LB]. In Maruti Suzuki's case Apex Court has laid down the law that the output when depends on the inputs and both have integral connection, nexus and intimacy as well as relevancy, the appellant shall be allowed Cenvat credit on that input. Mere use of certain goods shall not ipsofacto become input. In the absence of such tests being satisfied by the appellant, it is not entitled to any credit. Similarly in Vandana Global Ltd's decision, the Larger Bench has considered the admissibility of Cenvat credit upon satisfying the tests as referred to in para 49 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r itself we are able to appreciate that the tower is not covered by respective tariff entries depicted by learned Adjudicating authority embracing the claimed goods as capital goods as has been dealt by the by the Ld. Adjudicating authority in para 29 of the order as we have precisely stated herein before. Learned Counsel's submission that the tower suffered excise duty has no evidence in this respect. Copies of the invoices were also not found from records. Therefore, prima facie we are not able to be convinced that the tower had at all undergone suffering of excise duty so also we are not satisfied that the tower is capital goods. Also the pre-fabricated buildings for the most reasoned and speaking order passed by learned Adjudicating authority shall not be capital goods. 13. In so far as pleading of the appellant that the above two items are inputs is concerned we are also not prima facie satisfied that these goods have satisfied the tests laid down by Apex Court in Maruti Suzuki Ltd. case. When the appellant pleads that antenna is a capital goods on which Cenvat credit was permitted by para 29(c) of the order-in-original, claim of tower as well as pre fabricated building ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;s claim that unconditional stay was granted in the past in similarly situated cases by different Benches equally has received our consideration. But stay orders are not precedents, which can be varied or vacated. Every bench hearing a matter on the facts and circumstances of each case should have right to grant the interim order on such terms as it considers fit and proper and if it had granted interim order at one stage, it should have right to vary or alter such interim orders following the ratio laid down by Apex Court in para 53 of the judgment in Empire Industries Ltd. v. UOI - 1985 (20) E.L.T. 179 (S.C.). 16. Prima facie, the appellant has not brought out its case for total waiver of pre-deposit during pendency of appeal since appeal is a conditional right granted by law as held in the case of Vijay D. Mehta - 1989 (39) E.L.T. 178 (S.C.) = 1988 (4) SC 402. Balance of convenience does not tilt in favour of the appellant. There was no case made out to show that irreparable injury or undue hardship shall be caused to the appellant if no full waiver is granted. So also, neither materials were produced nor was financial hardship pleaded in the course of hearing. Rather, Revenu ..... 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