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TMI Blog1997 (3) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... s falling under Chapter 72 of the Central Excise Tariff Act, 1985, was availing capital goods Modvat credit under Rule 57Q of the Central Excise Rules, 1944 since September, 1984 in respect of refractories (bricks and mortar) and binding accessories used in electric arc furnace used in steel making, after having filed necessary declaration for the period September, 1994 to June, 1995. Six separate show cause notices were issued stating that the inputs in respect of which Modvat credit was availed were not eligible inputs and therefore, Modvat credit was not admissible and proposing to demand the amounts of duty taken credit of. The appellant resisted the show cause notices raising various contentions. However, the Commissioner overruled the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isable goods and parts thereof cannot be regarded as capital goods. These grounds are being challenged by the appellant. 5. The ld. Counsel for the appellant, while challenging the above conclusion of the Commissioner contended that the Tribunal, on several occasions, had held that refractories are parts of machine or machinery, and that the amendment introduced under Rule 57Q and referred to earlier are clarificatory in nature, and have retrospective effect, as held by the two Members Bench of the Tribunal in J.K. Synthetics Ltd. v. Commissioner of Central Excise, Jaipur - 1996 (88) E.L.T. 785 (Tribunal) = 1996 (17) RLT 98 and therefore, the final definition in Rule 57Q(1)(b) of the Rules would apply in regard to the earlier period also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned order. He further contended that a manufacturer who has given declaration under Rule 57Q of the Rules cannot at this stage claim benefit of Modvat credit under Rule 57A of the Rules in the absence of an appropriate declaration filed at the appropriate time as required under Rule 57A of the Rules. In support of his contention he placed reliance on the decision of a learned Single Member of the Tribunal in Kakkar Complex Steels Pvt. Ltd. v. Collector of Central Excise, Chandigarh - 1997 (90) E.L.T. 549. 6. In view of the decisions of the Tribunal in the case of Mukund Iron and Steel Works Ltd. v. Collector of Central Excise - 1990 (45) E.L.T. 84 (Tribunal); Mukund Iron and Steel Works Ltd. v. Collector of Central Excise - 1990 (4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r us to appreciate the factual position in regard to refractories as explained in the aforesaid three decisions of the Tribunal. The Commissioner has not relied on any materials leading to an inference to the contrary. The impugned order merely observed that refractories are used for the purpose of maintenance of the furnace. Perhaps, in the wider sense of the word refractories do contribute to maintenance of the furnace but as indicated in the passages quoted above, refractories are basically parts and important parts of furnace. The Larger Bench has held that while the machine, machinery, plant, equipment etc. are excluded from the purview of the Modvat scheme by virtue of exclusion clause (1) of the explanation to Rule 57A of the Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treating the goods as capital goods. It was held in Para 7 of the decision that declaration in respect of capital goods had been filed much after the date of taking Modvat credit and that the appellant s claim for benefit in terms of declaration filed under Rule 57G cannot be allowed. 10. We have to examine the facts and circumstances of the case to see whether the principle followed in the above decision can be applied in the present case. The three decisions of the Tribunal referred to earlier viz. two decisions relating to Mukund Iron Steel Works Ltd. - 1990 (45) E.L.T. 84 (Tribunal) and 1990 (48) E.L.T. 552 (Tribunal) and the decision in the case of Collector of Central Excise, Indore v. Raipur Alloy Steels Ltd. - 1995 (78) E.L.T. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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