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TMI Blog2018 (7) TMI 1940X X X X Extracts X X X X X X X X Extracts X X X X ..... actory by the appellant for manufacture of dutiable final products. The issue is no longer res integra. It has been held that ownership is irrelevant for the purpose of availing CENVAT Credit under the Cenvat Credit Rules. Hon ble Bombay High Court in the case of CCE Vs. Modernova Plastyles Pvt. Ltd.,[ 2015 (6) TMI 154 - BOMBAY HIGH COURT ] held that for taking credit of duty paid on capital goods (moulds) it would not be necessary that capital goods shall be owned by the assessee or those shall be acquired by finance from financing agency and denial of credit based on such ground is unsustainable. The appellant had correctly availed cenvat credit in respect of the duty paid on the capital goods involved and their entitlement to su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further imposed penalty of an equivalent amount under Rule 13(2) of the Cenvat Credit Rules read with Section 11AC of the Act upon the appellant. The period involved is financial years 2001-02 and 2002-03. 2. The facts in brief are: (i) For the purpose of manufacture of iron and steel products at its factory situated at Gamharia, Jamshedpur, oxygen gas is required. In terms of an agreement entered into by and between the appellant and Praxair India Ltd., an oxygen plant was erected and installed by Praxair at its own cost in the appellant s factory and upon due intimation to the jurisdictional Central Excise authority, production started therefrom on July 13, 2001. (ii) As per the agreement between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red in holding that the capital goods in question were not received by the appellant at its factory or were not in its control or possession or that the appellant did not have the right to use the said oxygen plant. It is further submitted that there is no requirement in Rule 4(3) of the Cenvat Credit Rules that the CENVAT Credit would be allowed only if the capital goods were acquired on lease from a financing company. In support of its contentions the appellant has relied on various decisions on the issues involved herein. 4. On behalf of the Revenue the reasons contained in the impugned order of the Commissioner were reiterated, including the decision of the Tribunal in Terene Fibres India Pvt. Ltd. Vs. CCE, reported in 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant s name and evidencing payment of duties thereon, thus satisfying the requirements of Rule 3(1) of the Cenvat Credit Rules of the capital goods being received in the factory. 7. From the agreement between the parties the fact that the appellant acquired the possession of the equipments under lease agreement and that operation and maintenance of the said plant by Praxair was on payment of agreed lease rent and operation and maintenance charges by the appellant to it are clear. The documents on record also evidence that the oxygen produced at the said plant was solely and exclusively captively used in the factory by the appellant for manufacture of dutiable final products. 8. The Commissioner has disall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on capital goods taken on lease from a company which was not a finance company is not allowable has also been rejected by the Tribunal in a number of decisions while interpreting Rule 4(3) of the Cenvat Credit Rules. In this connection reference may be made to the following decisions: (i) Jayaswal Neco Industries Ltd. Vs. CCE, 2016 (332) ELT 885 (Tri-Del) (ii) Leamak Healthcare Pvt. Ltd. Vs. CCE, 2010 (259) ELT 554 (Tri-Ahmd). 11. Following the aforesaid decisions we hold that the appellant had correctly availed cenvat credit in respect of the duty paid on the capital goods involved and their entitlement to such CENVAT Credit cannot be denied. We therefore set aside the impugned order and allow the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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