2010 (8) TMI 311

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..... out effluent gases cannot be said to be a pollution control equipment - appellant has not made out prima facie case for the Credit – part pre-deposit allowed
S/Shri P.G. Chacko, Member (J) and S.K. Gaule, Member (T) REPRESENTED BY : Shri Shrikant V. Gaonker, Consultant, for the Appellant. Shri Manish Mohan, DR, for the Respondent. [Order per : P.G. Chacko, Member (J)]. - This application seeks waiver of pre-deposit and stay of recovery in respect of CENVAT credit of Rs. 40,99,834/- and equivalent amount of penalty. The appellant had availed CENVAT credit on items like TOR Steel; HR Coils; HR Plates; Cement; Sheets; GI Sheets; SS Pipes; Shapes & Sections; MS Angles & Bars etc. which are claimed to have been used in the construction .....

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..... n of 'input' or capital goods. According to the Consultant, the aforesaid items were within the scope of the definition of 'input' prior to 7-7-09 and, therefore, the CENVAT credit in question which was availed prior to 7-7-09 would be admissible to the appellant. The learned SDR, in this context, submits that the above amendment is only clarificatory and hence has retrospective operation. In this connection, he also refers to para 43 of the Larger Bench decision in the case of Vandana Global Ltd. (supra). 2. After considering the submissions, we have not found prima facie case for the appellant against the entire demand. Though the appellant has claimed that various materials on which credit was taken were used in the erection/fabri .....

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..... steel items used in the construction of the water tanks would be admissible to the appellant. He further submits that Notification 16/2009-C.E. (N.T.) ibid would not affect this entitlement/of the appellant inasmuch as the amendment brought by the Notification to Explanation 2 does not appear to exclude steel items used in the construction of storage tanks from the scope of the definition of 'inputs'. This submission of the Consultant appears to be valid. 4. The total CENVAT credit taken on steel items used in the construction of storage tanks is estimated by the Consultant to be about Rs. 8.9 lakhs only. The appellant has not made out prima facie case for the rest of the credit, in view of the Tribunal's Larger Bench decision in the .....

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