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TMI Blog2012 (6) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... storage tanks are immovable property, they cannot come under the definition of capital goods - ‘capital assets' and ‘capital goods' cannot be held to be synonymous, thus, foundations and supporting structures imbedded to earth may be categorized as capital assets but would not qualify to be capital goods in terms of the definition contained in the Cenvat Credit Rules - the appellant has not made out any prima facie case for complete waiver of pre-deposit. - E/89/12-Mum - S/835/12/EB/C-II - Dated:- 14-5-2012 - Ashok Jindal, P R Chandrasekharan, JJ. For Appellant: Shri Shaunak Zaveri, CA For Respondent: Shri A K Prabhakar, Supdt. (AR) Per: P R Chandrasekharan: The appeal and stay application are directed against order-in-or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 2004, storage tanks have been specified as capital goods and, therefore, inputs which are used in the manufacture of capital goods are also eligible for CENVAT credit. As regards the chimneys, he states that it is a part of the power plant and without generation of power, the manufacturing activity cannot be undertaken and, therefore, the iron and steel items used in the construction of chimney and storage Silo should be considered as inputs. 3.1 The learned Consultant relies on the judgements of this Tribunal in the case of KCP Ltd. vs. Commissioner of Central Excise, Guntur 2009 (237) ELT-500 and Goa Sponge Power Ltd. vs. CCE Customs, Goa 2010 (259) ELT 557 and judgement of Hon'ble High Court of Karnataka in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, be put to terms at the interim stage of stay. 5. We have carefully considered the rival submissions. 5.1 It is not in dispute that the steel items such steel M.S. Angles, rods, beams etc. have been used in the construction of chimney for the power plant and storage Silo which are immovable properties as they are civil structure embedded to the earth. As per Rule 2(k) of the CENVAT Credit Rules, 2004, capital goods have been defined as reproduced below:- (A) the following goods namely: (i) all goods falling under Chapter 82, Chapter 84, Chapter 85, Chapter 90, heading No. 68.05 grinding wheels and the like and parts thereof falling under heading 6804 of the First Schedule to the Excise Tariff Act; (ii) pollution control equi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules enumerating a number of goods. Obviously, the said definition of capital goods' has a wider meaning and it would certainly include capital goods and other assets' such as immovable property in the form of building etc. once this distinction is appreciated, it is easy to see that foundations and supporting structures imbedded to earth may be categorized as capital assets but would not qualify to be capital goods in terms of the definition contained in the Cenvat Credit Rules. In fact, the definition states that capital goods' means the following goods, namely after which a list of goods has been provided: Mainly all goods falling in the machinery chapters of the Tariff have been specified in the list as also components, spares and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g structures for a machinery cannot be considered to be part or accessory of the machiner. Accordingly, it was held that steel structures used in the manufacture of capital assets which are immovable in nature are not eligible for CENVAT credit as inputs for capital goods. The Larger Bench decision prevails over all other decisions of this Tribunal relied upon by the assessee. 5.3 The Hon'ble High Court of Bombay in the case of Larsen Toubro (supra) considered the issue of excise duty liability on waste water treatment plant which was erected by embedding in civil work. The Hon'ble High Court held that the said plant erected by embedding in a civil work becomes immovable property and, therefore, no excise duty liability is attracte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used in the fabrication of chimney for the diesel generating set are eligible for CENVAT credit. In the present case, as per the facts before us, the chimney is not a part of any equipment but it is a part of the power plant and is a civil structure and so is the case in respect of storage silos. Therefore, ratio of the above said judgment will not apply to the facts of the present case which are distinguishable. 6. In view of the above, we are of the view that the appellant has not made out any prima facie case for complete waiver of pre-deposit of the dues adjudged. Accordingly, we direct the appellant to make a pre-deposit of Rs.35,00,000/- (Rupees thirty five lakhs only) within a period of eight weeks and report compliance on 07/08/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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