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TMI Blog2013 (11) TMI 1389X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 - PUNJAB & HARYANA HIGH COURT] - ownership of goods is not a criterion for denial of credit on capital goods and even if it is leased for a particular period, the assessee is eligible to take CENVAT Credit - merely because M/s Inox Air Products Ltd. has leased out the plant to the appellant, that does not disentitle the appellant from availing CENVAT Credit of the excise duty paid on capital goods - RAJARAMBAPU PATIL SSK LTD. Versus COMMISSIONER OF C. EX., PUNE-II [2006 (10) TMI 310 - CESTAT, MUMBAI] - CENVAT Credit of excise duty paid on parts, components and accessories would be admissible under the Capital Goods Credit scheme even if they are assembled into goods which are immovable or exempted. COMMISSIONER OF C. EX., MYSORE Versus ICL SUGARS LTD. [2011 (4) TMI 1065 - KARNATAKA HIGH COURT ] - immovability has no bearing on eligibility for availment of CENVAT Credit on capital goods - So long as the individual machinery, equipment or appliance or parts and components fall within the definition of capital goods under Rule 2(A) of the Cenvat Credit Rules, 2004 and so long as they are used within the factory of production for the manufacture of excisable goods which are char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to be recovered. Interest was also demanded on the credit wrongly availed and equivalent amount of penalty was imposed under Section 11AC. Aggrieved of the same, the appellant is before us. 3. The learned Counsel for the appellant made the following submissions:- (i) The appellant had entered into a lease agreement for the lease of 1260 TPD Gas Plant with M/s Inox Air Products Ltd. They had imported certain equipment for the said gas plant which would be used in the setting up of the said plant and M/s Inox were also required to procure certain other equipment for setting up of the plant at the factory of the appellant. All the goods were procured in the name of the appellant and as per the definition of plant in the said agreement, plant means components of tanks, machinery, equipment, system, appliances, items, materials as procured by M/s Inox Air Products Ltd. for commissioning of the production facilities and which part of the production facilities would be leased to the appellant during the terms of the agreement.' Thus, from the definition of plant, it includes all parts, equipments, and components etc. which form part of the plant. Further, as per article 19, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r capital goods credit even though the storage tank fabricated out of these items is an immovable property. Therefore, it is submitted that the various equipments, parts, components etc. which have gone into the manufacture of Oxygen Plant is an eligible item of capital goods under Rule 2(k) of the Cenvat Credit Rules as it stood at the relevant time. It is argued that merely because the plant has been leased out to the appellant, CENVAT Credit cannot be denied as ownership of the goods cannot be a criterion for availment of CENVAT Credit on capital goods. Reliance is also placed on the decision of the hon'ble Punjab Haryana High Court in the case of Pepsi Foods Ltd. -2010 (254) ELT 284 (P H), wherein it was held that CENVAT Credit cannot be denied on the basis of ownership of the goods since ownership of the goods cannot be a relevant criteria for allowing Modvat Credit. (iii) It is further argued that immovability of plant has no bearing on the eligibility for availment of CENVAT Credit in respect of capital goods and reliance is placed on the decision of the Hon'ble High Court of Karnataka in the case of Bannari Amman Sugars Ltd. Vs. CCE, Mysore - 2010 (250) ELT 326 (Kar) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovable property, the appellant would not be eligible for benefit of CENVAT Credit. Accordingly, it is prayed that impugned order is sustainable in law and the appeal be dismissed. 4.1 The Revenue has also filed an appeal against the impugned order for the reason that there is an error in the impugned order, which have been corrected by corrigendum, wherein as against the duty demand of Rs. 4,85,00,029/-, in the impugned order a demand of Rs. 4,40,05,465/- only has been confirmed, even though the Commissioner by issuing a corrigendum has rectified this mistake. 5. We have carefully considered the submissions made by both the sides. 5.1 As per Rule 2(a) of Cenvat Credit Rules, 2004, capital goods' means:- (A the following goods, namely:- (i) all goods falling under Chapter 82, Chapter 84, Chapter 85, Chapter 90, heading 6805, grinding wheels and the like, and parts thereof falling under heading 6804 of the First Schedule to the Excise Tariff Act; (ii) pollution control equipment; (iii) components, spares and accessories of the goods specified at (i) and (ii); (iv) moulds and dies, jigs and fixtures; (v) refractories and refractory materials; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the burden of cascading effect of taxes. If that purpose is to be achieved in a meaningful way, the law has to be interpreted in a reasonable manner so that the object is achieved. 5.2 In the decisions relied upon the appellant, the issues contested by the Revenue have been adequately addressed. For example, in the case of Pepsi Foods (supra), it has been held that ownership of goods is not a criterion for denial of credit on capital goods and even if it is leased for a particular period, the assessee is eligible to take CENVAT Credit. In the present case, merely because M/s Inox Air Products Ltd. has leased out the plant to the appellant, that does not disentitle the appellant from availing CENVAT Credit of the excise duty paid on capital goods. Similarly in the case of Gujarat Ambuja cement Ltd. (supra), Rajarambau Patil SSK Ltd. (supra) and KCP Ltd. (supra), this tribunal and the Hon'ble High Court of Himachal Pradesh held that CENVAT Credit of excise duty paid on parts, components and accessories would be admissible under the Capital Goods Credit scheme even if they are assembled into goods which are immovable or exempted. Similarly, in the ICL Sugars Ltd. (supra) it was held ..... X X X X Extracts X X X X X X X X Extracts X X X X
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