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TMI Blog2005 (1) TMI 527X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of Rule 57D(2). We make this observation only to indicate how liberal the rules are. In view of the above observations we extend the Modvat credit to all the goods in Serial Nos. 1 to 10. The learned SDR observed that certain items are used in sheds and roofing, etc. We want to make it clear that any item used in civil structure shall not be entitled for capital goods. While extending the benefit of Modvat credit, the authorities have to keep this in mind. With regard to Modvat credit on tanks, the Commissioner (Appeals) has held that wherever the impugned goods have been used for fabrication of eligible capital goods, particularly tanks, credit should not be denied. The Respondents have pointed out that the Commissioner (Appeals) has powers to remand the matter to the lower authority u/s 35A(3) even after its amendment from 11-5-2001 as held by the Hon ble High Court of Gujarat in the case of CCE v. Medico Labs. [ 2004 (9) TMI 108 - HIGH COURT OF GUJARAT AT AHMEDABAD] . There is nothing in Central Excise Act indicating that the Commissioner (Appeals) cannot pass orders with certain conditions. Passing a conditional order in a way amounts to passing a remand order. It has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nufacture of capital goods viz. OH crane, storage tank and other structures for support (nil duty) 6. E/1037/02 Rs. 46,76,102/- Penalty reduced to Rs. 2 lakhs Period June 98- July 98 (a) HR plates, angles, HR sheets, MS bears fabricated and parts used in manufacture of capital goods viz. OH crane, storage tank and other structures for support (nil duty) (b) Air cooler-8471.00 7. E/1038/02 Rs. 3,13,82,543/- Penalty Rs. 3 lakhs Period - Nov. 97 Dec. 97 Same as (a) at Sl. No. 6 above 8. E/1039/02 Rs. 12,68,911/- Penalty Rs. 50,000/-Period - Oct. 98 Dec. 98 Same as (a) at Sl. No. 6 above 9. E/l040/02 Rs. 1,31,00,676/- Penalty Rs. 4 lakhs Period - Sep. 97 - Oct. 97 Same as (a) at Sl. No. 6 above 10. E/1041/02 Rs. 28,94,168/- Penalty Rs. 1 lakh Period - Aug. 98 Same as (a) at Sl. No. 6 above 4. The learned SDR contended that the coverage of capital goods under Rule 57Q of Modvat Rules is very specific, covering Chapters 84, 85 and 90 and certain specific headings are excluded. Parts and components of headings specified under Chapter 84 and 85 are covered irrespective of their classification. Since HR plates, angles, channels, joists, etc. all falling under Chapter 73 are not specifically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CCE - 2000 (118) E.L.T. 608 (Tri) - Beams, structurals for providing support and for keeping the machinery in place are eligible Capital Goods CCE v. J.K. Cement Works - 2000 (125) E.L.T. 480 (T) - MS Supporting Structures, Angles, etc. are eligible Capital Goods Shakumbari Sugar Allied Industries Ltd . v. CCE - 2002 (148) E.L.T. 1138 = 2003 (54) RLT 895 (CESTAT) - Steel plates used as support material for capital goods are also eligible for Capital Goods Modvat credit United Phosphorous Ltd v. CCE - 2002 (150) E.L.T. 650 (Tri.) - MS Angles, Beams, Channels etc. if used in the foundation of the machinery or for housing protection are eligible Capital Goods. Varalakshmi Sugars Ltd . v. CCE - 2001 (137) E.L.T. 96 (T) - Staging structural material, MS plates chequered plates are capital goods Simbhaoli Sugar Mills Ltd . v. CCE - 2001 (135) E.L.T. 1239 (Tribunal)/ 2002 (139) E.L.T. A294 (S.C.) - Support Structures are Accessories/Components of Plant and hence eligible Capital Goods. Adarsh Industries v CCE - 2002 (147) E.L.T. 407 (T) - MS Beams, Channels, etc. used as support for plant/ machinery are parts of such plant/machinery and eligible Capital Goods. 2. Credit availed on MS Supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Goods 8. Spring Hanger Supports, Cable Tray Assembly Goods are not covered by the definition of Capital Goods Jawahar Mills Ltd . v. CCE - 1999 (108) E.L.T. 47 (Tri-LB) CCE v. Jawahar Mills Ltd . - 2001 (132) E.L.T. 3 (S.C.) 9. Refractory Cement, Tundish Relining Stand, Oil Tank units, Filter Cooling Pumps, MSB Distribution Board, Position Indicator, Ladle Turner Parts Declaration under Rule 57T not filed. J.B.M. Tools Ltd . v. CCE - 2002 (144) E.L.T. 561 (Tri) - Modvat credit cannot be denied merely for non-filing of declaration where there is no dispute on the receipt of duty paid inputs/capital goods Bajaj Electricals Ltd . v. CCE - 2003 (159) E.L.T. 287 (Tri) - Modvat credit cannot be denied on the ground of a failure to make a declaration. CCE v. MRPL - [2002 (150) E.L.T. 114 = 2002 (50) RLT 692 (Tri)] - Where duty paid nature of goods is not in doubt, credit cannot be denied for mere non-filing of declaration. Kamakhya Steels Pvt. Ltd . v. CCE - 2000 (121) E.L.T. 247 (Tribunal-LB) - Mere non-filing of declaration not to result in denial of credit Rathi Graphic Technologies Ltd . v. CCE - 2004 (60) RLT 519 (CESTAT) - Mere non-filing of declaration not to result in denial of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ists, Crane Rails, Angles, etc. were used for fabrication of various structures. The Revenue denied Modvat credit on the ground that these structures are not goods and they are immovable property and not capital goods. The case laws relied on by the learned Advocate are squarely applicable to this case. It has been held that the supporting structures of steel are capital goods. In view of this, we have no hesitation in extending Modvat credit for the item in Serial No. 1 to 5 in the above Tabular Column. Without the structures the capital goods could not function and consequently final products could not be manufactured in the absence of machines supported by the structures. Therefore, structures are covered within the ambit of the term plant . As regards the items at Sl. No. 6, GI Pipe Platform Ladders, it was contended by the learned SDR that the ladders and platforms are not Capital Goods . In the case of CCE v. Kothari Sugar Chemicals Ltd. - 2003 (55) RLT 453 (CESTAT), it has been held that operating platforms are integral to the plant. Hence they are capital goods. Hence we feel that the items at Sl. No. 6, are also entitled for Modvat credit as capital goods. As regards the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n accounted for, with the help of contemporaneous documents. He also observed (E/1065/02) that the credit should be allowed if it is proved before the original authority that the entire invoice amount including Central Excise duty has been paid to the supplier and the entire quantity has been accounted for with the help of contemporaneous documents. As regards the credit of furnace oil, he has observed that the amount of Rs. 10,064/- was the duty collected by IOCL. In the light of the duty paying document, credit only to the extent of 1% amounting to Rs. 629/- could be disallowed and the entire amount of Rs. 10,064/-. If this is indeed true, he agreed with the appellant s argument to hold that only 1% excess amount is to be disallowed. Again, he observed (E/1064/02) that if declaration dated 21-3-1997 has been filed, declaring Thermo Couples as temperature measuring instruments falling under Chapter heading 90.25, credit is allowed. In respect of MS Slabs (E/1066/02) of which the adjudicating authority disallowed the credit of Rs. 82,56,500/-, the Commissioner (Appeals) directed that the original authority should cause verification and if this is proved, credit should be allowed. W ..... X X X X Extracts X X X X X X X X Extracts X X X X
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