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TMI Blog2009 (7) TMI 952X X X X Extracts X X X X X X X X Extracts X X X X ..... t the appellants were that the appellants had wrongly availed Cenvat credit on the structural items like angles, channels, beam, joys, plates etc. which are not covered under definition of capital goods or the inputs used in the manufacture of final products/capital goods, as also that the appellants had availed Cenvat credit on oxygen gas and building electrodes which are not considered as the inputs used for manufacture of the final products. It was the Department s case that the said goods were used either for repair or maintenance purpose and therefore, no Cenvat credit could have been availed on those items. 3. Placing reliance in the matter of Birla Corporation Ltd. v. CCE, Raipur [2003 (160) E.L.T. 268 (Tri.-Del.); Birla Corporation Ltd. v. CCE [2005 (186) E.L.T. 266 (SC)]; Jayaswals Neco Ltd. v. CCE, Nagpur [2006 (195) E.L.T. 142 = 2007 (8) S.T.R. 305 (S.C.)]; Gopal Zarda Udyog v. CCE, New Delhi [2005 (188) E.L.T. 251 (S.C.)]; Continental Foundation Jt. Venture v. CCE, Chandigarh [2007 (216) E.L.T. 177 (S.C.)], order passed by this Tribunal in the matter of M/s. Aarti Sponge and Power Ltd. v. CCE, Chandigarh in E/Stay/1209/09-Ex on 18-6-09, learned Advocate for the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of enabling the manufacturer to avail the Cenvat credit stands well settled by the decision of Apex Court in J.K. Cotton Spg. Wvg Mills Co. Ltd. v. Sales Tax Officer, Kanpur reported in 1997 (91) E.L.T. 34 (S.C.). He also placed relied on the decision in the matter of CCE, Indore v. Rajaram Brothers reported in 2007 (217) E.L.T. 284 (Tri.-Del.); Union of India v. Hindustan Zinc Ltd. reported in 2008 (225) E.L.T. 183 (Raj.); Hindustan Zinc Ltd. v. Deputy Commissioner reported in 2009 (236) E.L.T. 35 (Raj.) as also delivered by the this Tribunal in the matter of M/s. Ambuja Cements Ltd. v. CCE, Raipur on 4-5-2009 in Excise Stay application No. 2714/08 in Appeal No. 2704/2008. Drawing our attention to para 14 of the impugned order, he submitted that the learned Commissioner has duly considered the aspect regarding the bar of limitation and on assessment of the materials on record has held that there was suppression of facts with intent to evade payment of duty by the appellants which clearly empowered the department to invoke the extended period of limitation. 7. Though the matter had been extensively argued in relation to entitlement of the manufacturer to avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be expressed. But to qualify for specification under Section 8(3)(b) goods must be intended for use of the nature mentioned in Rule 13, in the manufacture of goods. 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 the goods to qualify under Section 8(3)(b) must be intended for use as raw materials or as plant, or as equipment in the manufacture or processing of goods, and it cannot be said that building materials fall within this description. The High Court was, therefore, right in rejecting the claim of the Company in that behalf. 12. The expression but in a factory manufacturing cotton and electricals is somewhat vague, other textiles, certain electrical equipment in the present stage of development would be commercially necessary. For instance, without electric lighting it would be very difficult to carry on the business. Again electrical humidifiers, exhaust fans and similar electrical equipment would in the modern conditions of technological development normally be regarded as equipment necessary to effectually carry on the manufacturing process. We ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cing from this Court Union of India Anr. v. Delhi Cloth and General Mills Co., Ltd., 1977 (1) E.L.T. (J177) (S.C.) = AIR 1963 SC 791 to Indian Cable Co. Ltd. v. Collector of Central Excise, Calcutta, 1994 (74) E.L.T. 22 the twin test of exigibility of an article to duty under Excise Act are that it must be a goods mentioned either in the Schedule or under Item 68 and must be marketable. In Delhi Cloth Mills (supra) it having been held that the word goods applies to those which can be brought to market for being bought and sold it is implied that it applies to such goods as are movable. The requirement of the goods being brought to the market for being bought and sold has become known as the test of marketability which has been reiterated by this Court in Collector of Central Excise v. Ambalal Sarabhai Enterprises, 1989 (43) E.L.T. 214. The Court has held in Union Carbide India Ltd. v. Union of India Ors. - 1986 (24) E.L.T. 169 (S.C.) = (1986) 2 SCC 547 that even if a goods was capable of being brought to market, it would satisfy the test of marketability. The basic test, therefore, of levying duty under the Act is two fold. One, that any article must be a goods and second, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore it qualified for Modvat credit under Rule 57Q of the Central Excise Rules, 1944. The Apex Court while dealing with the question as to whether the duty paid on the spares of ropeways used for purposes of transporting the crushed limestone from mines located 4.2 Km. away to the factory was entitled to Modvat credit referring to the judgment of the Tribunal in J.K. Udaipur Udyog Ltd. v. CCE, Jaipur-II [2002 (147) E.L.T. 996] and CCE, Chennai v. M/s. Pepsico India Holdings Ltd. [2001 (130) E.L.T. 193 (T) = 2001 (42) RLT 800] held that, We cannot permit the Revenue to take a different stand in this case. The earlier appeal involving identical issue was not pressed and was therefore, dismissed. The respondents having taken a conscious decision to accept the principles laid down in Pepsico India Holdings Ltd. (Supra) cannot be permitted to take the opposite stand in this case. 15. In the J.K. Udaipur Udyog Ltd., when the Revenue had approached the Apex Court in an appeal against the order passed by the Tribunal, the same was disposed of with these observations : This appeal has been filed against order No. A/857/2002-NB(D) [2002 (147) E.L.T. 996 (Tri.-Del.)] passed by the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ards the bar of limitation is concerned, the learned Commissioner while dealing with the aspect of the matter has held thus :- 14. Coming to limitation issue, I find that extended period of limitation has been invoked in the show cause notice alleging suppression of facts. It is not the case here that the Noticee voluntarily declared the emergence of impugned structures of plant and machineries in their ER-1 returns and that the Department was dormant for more than one year. The case was detected by the officers of Central Excise during the course of audit of noticee s record and after necessary investigation by the Range Officer, vide statement of Shri Anant Dave the Manager and Authorised Signatory of M/s. Shree Nakoda Ispat Pvt. Ltd. dated 17-4-2008, the show cause notice was issued within the period of five years as provided under proviso to Section 11A(1) of the Central Excise Act, 1944 by rightly considering it as a case of suppression of facts with intent to evade payment of duty. If the noticee had considered the fabricated items in their ER-1 returns specifying therein the complete description and tariff classification alongwith exemption notification No. etc. Moreover, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith intent to evade payment of duty and hence the department was entitled to invoke the extended period of limitation. Undoubtedly the show cause notice has been issued immediately after the audit. It had come to the knowledge of the Department on or about on 1-7-08 and the period which was covered by the said notice was one year from the date of audit. Being so, it cannot be said that period beyond the notice could not include the period beyond one year from the date of knowledge of the suppression of the relevant fact. Hence the contention relating the bar of limitation is without any substance. 18. In the facts and circumstances of the case, therefore, the decision of the Apex Court in Gopal Zarda Udyog and Continental Foundation Jt. Venture case are of no help to the appellants. 19. In Gopal Zargda Udyog case, the Apex Court while reiterating its earlier decision in Padmini Products v. Collector [1989 (43) E.L.T. 195 (S.C.)], held that mere failure or negligence on part of manufacturer either not to take out licence or not to pay duty in cases where there is scope for doubt, does not attract extended period of limitation. In the case in hand, it is not the case of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a lot of difference as regards the ultimate finding which is required to be arrived at, to ascertain whether the parties are entitled for interim relief or not. Being so, merely because in one case interim relief has been granted, that does not necessarily follow that every other case, wherein some of the facts are of similar nature, in such cases similar order should necessarily follow. 22. Being so, neither the order in Ambuja Cement Ltd. case nor M/s. Aarti Sponge Power Ltd. case can be of no help in the case in hand at this stage. 23. In the facts and circumstances of the case, therefore, we do not find any case having been made out for grant of waiver of demand of duty in the matter. However, bearing in mind the various points which are sought to be raised in the appeal, it would not warrant insistence for deposit of interest and penalty amount. Hence in our considered view, case has been made out for waiver of interest and penalty during the pendency of the appeal. 24. Section 35F of the said Act clearly requires the parties to make out a clear case regarding the financial hardship, if any, apart from merely stating that direction to deposit the entire amount as claim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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