9911796707
TMI Blog2018 (12) TMI 845X X X X Extracts X X X X X X X X Extracts X X X X ..... be applied to the subsequent periods covered by these 12 appeals, not only on account of aforesaid change of definition of inputs/capital goods as also on account of subsequent decisions of the Hon‘ble Supreme Court. Hon‘ble Supreme Court in their subsequent judgment in Thermax Babcock & Wilcox Ltd. [2015 (5) TMI 631 - SUPREME COURT], has been followed by the Tribunal in Thermax Ltd. Vs. Commissioner of Central Excise, Pune [2016 (7) TMI 797 - CESTAT MUMBAI] wherein it has been held that bought out items used in erection of boilers at customer‘s site are inputs and cannot be distinguished from inputs used in manufacture of components within the factory, as both have gone into manufacture of final product. CENVAT credit availed on the impugned bought out goods / inputs, with interest, and also imposing penalties under various provisions of law, cannot be sustained and require to be set aside - appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of irregularly availed Modvat credit including imposition of appropriate penalty, after giving an effective opportunity of hearing to the appellants, in accordance with law. The appeals are thus allowed by remand. The cross-objections stand disposed of accordingly." 1.2 Against this Tribunal's order, the appellant preferred Civil Appeal No. 5509 & 5510/2003 before the Hon'ble Supreme Court which were disposed of on 3.9.2013, as reported in 2013 (295) ELT 353 (SC). The Hon'ble Supreme Court upheld the order passed by Tribunal. The relevant portion is reproduced as under:- "24. It is also not in dispute that the appellant had purchased some machinery from others and such machinery had not even been unpacked by it and in the exact condition it had been transported along with the machinery manufactured by it to Vietnam. Thus, the appellant did not use the purchased machinery in its premises or in its factory and therefore, necessary condition incorporated in the Rules for availing credit of the MODVAT had not been complied with. To avail the MODVAT credit, the input on which excise duty is paid must be used in the manufacture of the final product in the factory of the assessee. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of credit. The applicability of interest provisions considering the plea made by M/s. KCP that the credit was not utilized Penalty provisions under Rules 57I and 57U were incorporated only with effect from 23.7.1996 (wrongly mentioned as 23.6.1996) and no penalty under these rules can be imposed for the period prior to this date. If any other penal provision is attracted M/s. KCP are to be given a reasonable opportunity of defense before imposition of such penalty The plea on reopening the question of time bar was rejected as the order of the Tribunal had merged in the order of the Apex Court The plea for consideration of rebate was rejected as no such claim existed in the preceding proceedings The aspect of depreciation claims in respect of the capital goods to be examined and dealt with The predeposit of ₹ 1,40,36,960/- made in compliance of Misc. Order 40032 to 40075/2015 dated 5.1.2015 shall not be claimed as refund till the completion of the adjudication proceedings. 1.4 With respect to appeals (E/41742 to 41761/2014) relating to remaining 20 notices, the Tribunal ordered as under:- "In the course of hearing we were given to understand that issue as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvolved 1. 24/1996 dated 29.3.1996 1/2017 dated 29.3.2017 July 1994 to Jan. 1996 E/41435/2017 67,67,884/- 2. Nil/1997 dated 3.3.1997 2/2017 dated 29.3.2017 Aug. 1996 to Jan. 1997 E/41436/2017 18,81,113/- 3. 598/95 dated 30.5.1995 3/2017 dated 29.3.2017 Nov. 1994 & Dec. 1994 No appeal 1,31,519/DROPPED 4. 146/96 dated 2.9.1996 4/2017 dated 29.3.2017 Feb. 1996 to July 1996 E/41437/2017 1,36,203/- 5. 3/98 dated 19.2.1998 5/2017 dated 29.3.2017 Sep. 1997 E/41438/2017 4,16,000/- 6. 1007/98 dated 28.9.1998 6/2017 dated 29.3.2017 April 1998 to August 1998 E/41439/2017 27,89,277/- 7. 265/99 dated 17.2.1999 75/2017 dated 29.3.2017 Sep. 1998 to Jan. 1999 E/41440/2017 1,25,65,486/- 8. 936/99 dated 11.8.1999 8/2017 dated 29.3.2017 Feb. 1999 to July 1999 E/41441/2017 37,76,861/- 9. 118/2000 dated 3.2.2000 9/2017 dated 29.3.2017 Aug. 1999 to Jan. 2000 E/41442/2017 1,68,226/- 10. 565/2001 dated 8.11.2001 10/2017 dated 29.3.2017 Nov. 2000 to Aug. 2001 E/41443/2017 1,54,575/- 11. 278/2003 dated 8.9.2003 11/2017 dated 29.3.2017 Sep. 2002 to Aug. 2003 E/41444/2017 3,44,446/- 12. 18/2004 dated 2.9.2004 12/2017 dated 29.3.2017 Sep. 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts amendment by Central Excise Rules, 2002, a new set of laws came into existence from 2002 onwards. (ii) The said remand direction based on the earlier proceedings and upheld by the Hon'ble Supreme Court is applicable only in respect of the two appeals pertaining to Order-in-Original No.8/2014 and 9/2014 (Here O-in-O No.01/2017 and 02/2017 dated 29.03.2017) and the same does not hold good as the provisions of law relating to MODVAT law had since then changed into CENVAT law, which resulted in issuance of CENVAT Credit Rules, 2001, CENVAT Credit Rules, 2002, CENVAT Credit Rules, 2004 and changes in Central Excise Rules, 1944 as Central Excise (no.2) Rules, 2001 and Central Excise Rules, 2002. (iii) Not only the said Rules had undergone a sea change but also the definitions of ―inputs" and ―Capital Goods", periodically underwent changes due to continued liberalization in Policy, which resulted in the broader definition of ―inputs" and ―capital goods". Therefore, it is submitted that the Adjudicating Authority ought to have discussed the merits of the case particularly, in the context of the changed provisions of Central Excise and MODVAT/CENVAT law, which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een paid at the time of removal thereof are subsequently returned to the factory for being re-made, refined, re-conditioned or for any other reason, the assesse shall state the particulars of such return in his records and shall be entitled to have CENVAT credit of the duty paid as if such goods are received as inputs under the CENVAT Rules. [2] The assesse shall be liable to pay the duty on goods returned under sub-rule (1) when removed subsequently at the rate applicable on the date of removal and on the value determined under section 4 of the Act." Notification No.9/2001-CE (NT) Dated 01.03.2001 1)The words ―As if such goods are received as inputs under the CENVAT Rules." Gives the duty paid goods the qualification of inputs by this deeming legal fiction in the Rule itself. 2)The words ―subsequently returned to the factory" led to department contending that the goods should be manufactured in the same factory to be returned under this Rule in some cases. 2 13.12.2001 Boards clarification vide Circular No.607/44/2001-CX. Dated 13.12.2001 Despite the wordings ―for any other reason", there were representations from the Trade that they are no longer allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntents of clarification issued in December 2001 into effect in a proper manner. (2) If the process does not amount to manufacture, the manufacturer shall pay an amount equal to the credit taken. (3)This explanation qualifies the duty paid goods as if it is inputs under CENVAT Credit Rules and when the duty amounts are paid when it is removed, it qualifies as final products. (vii) The period of dispute involved in all these appeals is from September 2002 to November 2012. Hence the earlier Supreme Court's judgment is not applicable to the present cases due to the change in law. As explained earlier, there was broadening of the scope of the definition of input also. Rule 16 underwent radical change in 2000. Hence, the appellants are very much entitled to avail the credit on the impugned goods from 2002 onwards. (viii) It is therefore contended that the show cause notices relating to the present appeals should have been delinked and dealt with separately by the Tribunal in their final order dated 21.9.2015. (ix) The argument about the changes in law had also been argued before the adjudicating authority. Hence the proceedings covered by these appeals should have been separately c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals, the law has changed is without any basis. The adjudicating authority in para 4.3 of the impugned order had considered this plea of the appellant with regard to applicability of the amendment to the definition of inputs. The said amendments brought does not cause any substantial change in the statutory definition of ‗input' and therefore the judgment delivered by the Hon'ble Supreme Court is squarely applicable. 3.3 With regard to the contention of the appellant as to the applicability of Rule 16, the ld. AR argued that the appellants have not raised the said plea before the adjudicating authority and therefore the same cannot be considered at the stage of the Tribunal. It is also emphasized by him that the Tribunal in its final order had remanded with specific directions and only because the adjudicating authority had reconsidered the issue on merits, it cannot be said that the appellant can further argue the issue on merits. He submitted that the various decisions referred to by the appellant are not applicable to the case, since the decision of the Hon'ble Supreme Court in the appellant's own case covers the matter. The bought out items were neither used nor requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had inter alia held as under:- "24. It is also not in dispute that the appellant had purchased some machinery from others and such machinery had not even been unpacked by it and in the exact condition it had been transported along with the machinery manufactured by it to Vietnam. Thus, the appellant did not use the purchased machinery in its premises or in its factory and therefore, necessary condition incorporated in the Rules for availing credit of the MODVAT had not been complied with. To avail the MODVAT credit, the input on which excise duty is paid must be used in the manufacture of the final product in the factory of the assessee. The machinery purchased by the appellant had not even been tested or was not even unwrapped in the factory of the appellant. In case of such an admitted fact, it cannot be said that the machinery so purchased from others was used by the appellant in the manufacture of the sugar plant. 25. In the instant case, the appellant had only acted as a trader or as an exporter in relation to the machinery purchased by it, which had been exported and used for setting up a sugar plant in a foreign country. In any case, it cannot be said to have manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble as Boiler, which decision was upheld by the Hon‟ble Supreme Court in 2015 (320) ELT 32 (SC). This decision has also been followed by the Tribunal subsequently in Commissioner of Central Excise Vs. BHEL - 2009 (247) ELT 263 (Tri. Chennai) and Thermax Ltd. - 2016 (337) ELT 456 (Tri. Mum.). The same ratio has also been followed in Flat Products Equipments (I) Ltd. - 2011 (272) ELT 104 (Tri. Mum.) where in fact the Tribunal had addressed similar issue of piecemeal export of voluminous size machinery and admissibility of credit on bought out items included therein. 7. Notwithstanding all these factoids, the undeniable fact is that the earlier order of this Bench, in the appellant‟s own case had concluded, "that bought out items both inputs and capital goods in question cannot be considered as eligible capital goods for availing MODVAT credit …..". The remand directions given by the Tribunal in that order dated 2.5.2003 was only for „computing and confirming the amount of irregularly availed MODVAT credit …. etc." based on the above conclusion reached by them. This decision has been upheld by the Hon‟ble Supreme Court reported in 2013 (295) ELT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of this section and the conditions and restrictions that may be specified in the notification: Provided that the Central Government may specify the goods or classes of goods in respect of which the credit of specified duty may be restricted. Explanation:- [For the purposes of this rule, "inputs" includes- (a) Inputs which are manufactured and used within the factory of production, in or in relation to, the manufacture of final products, and (b) Paints and packaging materials, (c) Inputs used as fuel. (d) Inputs Used for Generation of Electricity, Used Within The Factory Of Production, For Manufacture Of Final Products Or For Any Other Purpose And (e) Accessories of the final products cleared along with such final product, the value of which is included in the assessable value of the final product. But does not include - (i) Machines, machinery, plant, equipment, apparatus, tools or appliances or capital goods as defined in rule 57Q used for producing or processing of any goods or for bringing about any change in any substance in or in relation to the manufacture of the final products; (ii) Packaging materials in respect of which any exemption to the extent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out items, both inputs and capital goods, had been dwelt into by the Tribunal in its Final Order No.301-302/2003 dated 02.05.2003 (para 1.1 supra) and by the Hon'ble Supreme Court in paras 24 to 28 of their judgment dated 03.09.2013 [para 1.2 supra], in the appellant's own case. 5.7 However, in the present batch of appeals before us, as found above, the period of dispute involved is from September 2002 to November 2012. We find that the erstwhile definition of ‗inputs' under Rule 57A had been replaced / amended during this disputed period as under:- (a) MODVAT scheme was replaced with CENVAT scheme vide Notification No. 27/2000-CE (NT) dated 31.3.2000. This also resulted in the erstwhile Central Excise Rules 57A to 57V being replaced / substituted by new Central Excise Rules 57AA to 57AK. The definition of ‗inputs' in these new Rules was given under Rule 57AA(1)(d) as under:- ―Input" means all goods, except high speed diesel oil and motor sprit commonly known as petrol, used in or in relation to the manufacture of final products whether directly or indirectly and whether contained in the final product or not, and includes accessories of the final products cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition of ‗inputs' was further tweaked and incorporated under Rule 2(k) as under:- "input means:- (i) all goods, except light diesel oil, high speed diesel oil and motor spirit, commonly known as petrol, used in or in relation to the manufacture of final products whether directly or indirectly and whether contained in the final product or not and includes lubricating oils, greases, cutting oils, coolants, accessories of the final products cleared along with the final product, goods used as paint, or as packing material, or as fuel, or for generation of electricity or steam used in or in relation to manufacture of final products or for any other purpose, within the factory of production; (ii) all goods, except light diesel oil, high speed diesel oil, motor spirit, commonly known as petrol and motor vehicles, used for providing any output service; Explanation 1. - The light diesel oil, high speed diesel oil or motor spirit, commonly known as petrol, shall not be treated as an input for any purpose whatsoever; Explanation 2. - Input include goods used in the manufacture of capital goods which are further used in the factory of the manufacturer [but shall not include cem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Explanation. - For the purpose of this clause, "free warranty" means a warranty provided by the manufacturer, the value of which is included in the price of the final product and is not charged separately from the customer;" (emphasis added) Thus, the definition of inputs was even further widened and broad banded with effect from 1.7.2001. The requirement of inputs required ―to be used in or in relation to the manufacture of final products, whether directly or indirectly" etc. was done away with and instead the scope of inputs amplified to include even goods merely used in the factory by the manufacturer and / or any goods including accessories cleared along with the final product, the only requirement being the value of such goods should be included in the value of the final product and so on. (f) So also, the definition of ―capital goods" under erstwhile Rule 57Q of Central Excise Rules, 1944 reproduced in para 5.5 supra underwent various evolutions. After introduction of CENVAT Credit Rules, 2001, ―capital goods" was defined as under:- (b) ―capital goods" means,- (i) all goods falling under Chapter 82, chapter 84, Chapter 85, Chapter 90, heading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 57Q of the Central Excise Rules, 1944, reproduced at para 5.5 above has also evolved over the years, for example in the definition of ―capital goods" brought about in Central Excise Rules, 2001 and 2002 and CENVAT Credit Rules, 2004. 5.8 We thus find that in respect of these twelve appeals, where the period in dispute is from September 2002 to November 2012, various definitions of inputs that were in force during the said period did not have any requirement that inputs should be ―manufactured and used within the factory of production, in or in relation to the manufacture of final product" which was the prime conditionality in the definition of inputs prior to 1.6.2001, in particular, the definition under erstwhile Rule 57A as on 31.3.1997. 5.9 Further, in all these definitions, during the impugned period, post 1.6.2001, there is an inclusive part namely that the ―inputs ……. includes lubricating oil, grease, coolants etc. accessories of the final products cleared along with the final product". As we have found above, the evolving definitions of inputs with effect from 1.4.2001 became broad based enough to include not only all goods used in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. We answer the question referred to us in the above manner leaving it for the appropriate bench of this Court to decide on the factual parameters of the case(s) and the entitlement of the assessee(s) to Cenvat credit in the facts of each case." 5.11 We also find that the Apex Court in the case of Doypacks Systems P. Ltd. Vs. Union of India reported in 1988 (36) ELT 201 (SC) have interpreted the words ―in or in relation to" as also the word ―includes" as under:- "48. The expression "in relation to" (so also "pertaining to"), is a very broad expression which pre-supposes another subject matter. These are words of comprehensiveness which might both have a direct significance as well as an indirect significance depending on the context, see State Wakf Board v. Abdul Aziz (A.I.R. 1968 Madras 79, 81 paragraphs 8 and 10,following and approving Nitai Charan Bagchi v. Suresh Chandra Paul (66 C.W.N. 767), Shyam Lal v. M. Shayamlal (A.I.R. 1933 All. 649) and 76 Corpus Juris Secundum 621. Assuming that the investments in shares and in lands do not form part of the undertakings but are different subject matters, even then these would be brought within the purview of the vestin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of export. There is also no allegation that the combined value of both manufactured as well as bought out items have not been included in the export price declared by the appellants. There also appears to be no dispute that the assemblage of goods at the point of export was an omnium gatherum gathered of both self-manufactured and bought out items, all duty paid by the respective manufacturers, which was intended to constitute a complete sugar plant in Vietnam. The show cause notice dated 29.3.1996 at para 2.0, also narrates that the disputed bought out goods were "used only for receipt and export, as such". 5.13 Obviously, the appellants have transported these machineries, both those manufactured by them and the other bought out inputs / goods removed as such, in various consignments for export purposes and eventual erection of a sugar plant in Vietnam. Having analyzed and understood the changed definitions of ―input" which were in force during the period impugned in the present appeals as also the settled interpretation of the word ―includes" and ―in or in relation to", to credit of duty will be eligible in respect of inputs / all the goods exported by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng in duty paid goods of other manufacturers, the Board clarified vide Circular No. 607/44/2001-CX. Dated 13.12.2001, that (para2 & 3), "2….The said Rule 16 provides for return of duty paid duty paid goods to the factory for being re-made, refined, reconditioned or any other reason. ..3. Accordingly, the Board has decided that the word "return" in Rule 16 referred above, need not be interpreted strictly. Receipt of duty paid goods in the factory of manufacturer for the purpose specified in said rule may be allowed even in respect of goods not manufactured by them …" (c) RULE 16 OF CENTRAL EXCISE RULES, 2002 16. Credit of duty on goods brought to the factory. - (1) Where any goods on which duty had been paid at the time of removal thereof are brought to any factory for being re-made, refined, re-conditioned or for any other reason, the assessee shall state the particulars of such receipt in his records and shall be entitled to take CENVAT credit of the duty paid as if such goods are received as inputs under the CENVAT Credit Rules, 2002 and utilise this credit according to the said rules. (2) If the process to which the goods are subjected before being removed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ip;…… He further submits that even assuming the activity of the appellant is not of manufacture, in such case clearance of the goods in question shall be treated as clearance of inputs as such. In that event whatever Cenvat credit was availed is required to be paid on the removal of input as such. In the present case on the quantum of domestic clearance the excise duty was paid to the tune of ₹ 58,24,273/- as against the Cenvat credit availed on the same goods amounting to ₹ 57,12,225/-. For this reason also whatever credit was availed stand paid back, hence no further recovery can be made. He submits that as regard the quantum of goods cleared for export, Cenvat credit involved is ₹ 87,53,287/. In this case even though activity does not amount to manufacture, no duty is required to be paid on the export of goods, hence, the Cenvat credit is admissible as goods have been exported…... xxxx xxxxxx xxxxx xxxxxx xxxx 6. We find that the ld. counsel made various alternative submissions. We find that activity of the appellant, i.e., receipt of duty paid goods, i.e., Oil Slump Body, Cylinder Head & Rover Cylinder, availment of Cenvat credit there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Ld. Counsel, I find that it is consistently held that even though the credit was wrongly taken on any goods if the same was paid back at the time of clearances of said input, Cenvat credit cannot be denied. Judgments relied upon by the Ld. A.R. are not exactly on the fact involved in the present case, therefore the same are not help to the Revenue. As per my above discussion, I am of the considered view that in case of bought out imported goods if duty is paid equal to the Cenvat credit, demand does not exist ….." (c) In the case of Commissioner of Central Excise, Mumbai Vs. M/s. TATA Steel Ltd. - 2017 (349) ELT 783 (Tri. Mum.), it had been observed as under:- "6. We also observe that the demand is pertaining to the period 29-3-2000 to 28-5-2004. Therefore, the period from 29-3-2000 to 30-6-2001 is not covered by Rule 16. However, even if Rule 16 was not available, the respondents have taken credit on the input and cleared after the processing of drawing for export. As per this transaction, it is nothing but the availment of credit on the input and if at all the activity does not amount to manufacture it is removal of input as such. The removal of input either can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the buyer. The contention of Revenue is that the goods being cement/finished product, the credit is not admissible. Rule 16 does not require remanufacturing of goods or that goods should undergo any process after being brought to the factory and before being removed. The goods if brought for being re-made, refined, reconditioned or "for any other reason", the rule would apply. Thus, I do not find that there is contravention of any of the provisions of Cenvat Credit Rules, 2004. The activity falls within the ambit of Rule 16 of Central Excise Rules, 2002. On such score, the demand of interest and imposition of penalty is unsustainable. 9. The impugned order is therefore, set aside. The appeal is allowed with consequential reliefs, if any." The combined take away from all the aforesaid decisions of the Tribunal, when applied to the appeals under decision would mean that even on the bought out items, which are being exported as such, the CENVAT credit is very much available to the appellant. 7. As mentioned, in our earlier Final Order No. 41661 to41669/2018 dated 31.5.2018, we dealt with nine appeals arising out of the very same impugned order No. 1 to 22/2017 dated 29.3.2017. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llows:- "5. On behalf of the appellant, it was also contended, that the appellant is, indisputably, eligible for rebate of duty on inputs „bought-out‟ and supplied as exports. It was claimed that it is a well-settled principle of law that what is available as rebate can also be availed as credit. Further, the appellant-assessee, even if regarded as merchant exporter, was entitled to such rebate and hence denial to them as a manufacturer would be grossly inequitable; that the principle and policy of „non-exportability‟ of taxes is jeopardized if the contention of the Revenue is accepted. 6. The appellant-assessee cited Flat Products Equipments (I) Ltd. v. Commissioner of Central Excise [2011 (272) E.L.T. 104], Dicitex Dicor Pvt. Ltd. v. Commissioner of Central Excise [2012 (286) E.L.T. 626] and Finolex Cables Ltd. v. Commissioner of Central Excise [2007 (210) E.L.T. 76 (Tri.-Mumbai) = 2007 (5) S.T.R. 261 (T)]. It is seen that In Re : Flat Products Equipments (I) Ltd. (supra) the voluminous nature of the contents compelled piecemeal removal but, as long as value of the „bought-out‟ parts is also included in the value of machinery, credit of dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he purchasers for the period between 1st July, 2006 and 4th January, 2011. We notice from the records that the contracts for erection of boilers are executed at the site of customers owing to physical impossibility of assembling the same and transporting it in that form to the premises where it is to be finally installed. It is not in dispute that the assessee-appellant manufactures pressure parts of boilers in the factory and such other parts as required for the complete installation of the boiler in its functional form is procured from outside. In executing the contracts entered into with the domestic purchasers, the pressure parts are cleared from the factory and the other components are sourced directly for delivery at the erection site. 9. Identical matter had come up for decision before this Tribunal to determine whether the duty liability arises only on the pressure parts or on the boiler, as such, including the „bought-out parts‟. The Tribunal in Commissioner of Central Excise, Pune-I v. Thermax Bobcock & Wilcox Ltd. [2005 (182) E.L.T. 336 (Tri-Mumbai)] decided that, in view of the sub-heading 8402.10 of the schedule to the Central Excise Tariff Act, 1985 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordance with the definition in Rule 2(k)(i) as it stood then. 10. The impugned order has elaborately examined the applicability of various judgments cited. The decision of the Tribunal in Flat Products Equipments (I) Ltd. v. Commissioner of Central Excise, Belapur [2011 (272) E.L.T. 104 (Tri.-Mum.)] is that : "6. There is no dispute about the fact that the bought out parts have been exported on payment of duty under claim for rebate and the jurisdictional Assistant Commissioner has also passed the claim for rebate vide his order dated 29-11-2007 holding that the bought out parts form part of the complete machinery. In the appellant‟s own case, referred to supra, it was held that even though the goods were cleared in piecemeal the goods were classifiable as rolling mills and galvanising lines and not as parts thereof. What was cleared by the appellant was the complete machine. Further, the Board‟s circular dated 3-12-2006 makes it abundantly clear that even if inputs are removed as such they could be exported either under bond or under claim for rebate of duty and the Cenvat credit on the parts would be available. In the case of Narmada Chematur Pharmaceuticals Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s rightly entitled to the Cenvat credit on the goods exported, even from a policy perspective, such credit is permissible." 11. Considering the decision of the Tribunal supra, the appellant is entitled to take Cenvat credit on the „bought-out‟ parts used in the installation of boilers. We notice that some of the boilers have been erected at the Special Economic Zone at Jamnagar while others have been exported from India. Considering the decision of the Tribunal In Re : Flat Products Equipments (I) Ltd. (supra) the demand of credit cannot survive. 12. For the above reasons we set aside the impugned order and allow the appeal of M/s. Thermax Ltd. In view of our decision in the appeal of the assessee, the appeal of Revenue fails and the same is accordingly dismissed. Cross-objection also disposed of." 9. In the light of the discussions, findings, conclusions herein above, and also following the ratio laid down by the Hon'ble Apex Court in their subsequent judgments in Thermax Babcock & Wilcox Ltd. (supra) and BHEL (supra) as also the Tribunal's decision in Thermax Ltd. (supra), we hold / order as under:- (i) The ratio of the Hon'ble Supreme Court's decisions in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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