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TMI Blog2006 (7) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... eved by the denial of Modvat credit under Rule 57Q of the Central Excise Rules, 1944 in respect of the following items:- (a) M.S. Angles, M.S. Plates, R.S. joints, M.S. Channels, Castings, Holdings, M.S. Beams, SS Plates, H.R. Coils etc. (b) Zincdust, Enal liquid, Garbrosil crey and Thinner. (c) Silica gels, Fire crete, Pre-vulcanised sheets, Super adhesives and rubber expansion joints. (d) Pipes, Pipe fittings, and tubes. In the Department's appeals, the challenge is against the grant of capital goods credit to the assessee in respect of the following items:- (i) Whytheat, (ii) Dense castabale refractory (iii) Insulating castable refractory. The period of dispute is from November, 1995 to June, 1996 i.e. prior to 23-7-1996, the da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ai High Court in respect of the pipes and tubes for a period prior to 23-7-1996 in the case of CCE, Pune v. Indian Seamless Steels & Alloys Ltd. [2005 (190) E.L.T. 12 (Bom.)]. We have heard ld. SDR also, who has reiterated the findings of the Commissioner (Appeals). 3. In the Revenue's appeal, ld. SDR submits that the items in question were admittedly used over a short period of time and hence liable to be treated as consumables. Nevertheless, ld. Commissioner (Appeals) allowed capital goods credit in respect of these items, unlike in the case of "Fire crete" which was held to be consumables and capital goods credit was disallowed. According to the SDR, refractory materials in question were falling under Chapter Heading 38.16 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above. 5. In respect of the items mentioned at (b) and (c) above, we find that the assessee has been able to make a good case on the strength of the Punjab and Haryana High Court's decision in CCE, Chandigarh v. Zenith Papers [2002 (146) E.L.T. 518 (P&H)], wherein it was held that where certain items were excluded from inputs by virtue of 'Explanation' to Rule 57A and were included in the category of machines, machinery etc. then Modvat credit should be admissible under Rule 57Q. Conversely, as argued by ld. Counsel, where any item was excluded from the category of capital goods on account of it being a consumable, Modvat credit was to be allowed under Rule 57A. In this connection, the Larger Bench decision in Modi Rubber (supra) is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substance in this grievance. We are of the view that the original authority should carefully examine the modvatability of all electrical/electronic items afresh after giving the party a reasonable opportunity to establish their case. ld. Counsel has claimed support from the Tribunal's Larger Bench decision in Jawahar Mills Ltd. v. CCE, Coimbatore [1999 (108) E.L.T. 47 (Trib.-LB)] affirmed by the Apex Court in CCE, Coimbatore v. Jawahar Mills Ltd. [2001 (132) E.L.T. 3 (S.C.). It is up to the assessee to make out their case before the original authority and hence we need not examine this matter any further. 6. In the result, the assessee's appeals are allowed with consequential relief to them in respect of all items except the structur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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