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TMI Blog2024 (2) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... these structures were got fastened to the earth. There is no denial to the fact that the products brought in CKD condition were the excisable commodity when these admitted facts are glanced in light of above definition of Section 3 of Transfer of Property Act, it is clear that the tower or shelter erected with the help of nut and bolts to a foundation on earth to provide stability and functionality does not qualify to mean attached to the earth . There are no no reason to accept the findings of the order under challenge with the irrespective that some other party is before Hon ble Supreme Court on the same issue, especially when there is no stay of order in that case by the Supreme Court - it is held that goods in question, the pre-fabricated shelter is not immovable property but is the Capital Good for which the appellant is entitled to take credit of duty paid. The order under challenge is hereby set aside - Appeal allowed. - DR. RACHNA GUPTA, MEMBER (JUDICIAL) AND MS. HEMAMBIKA R. PRIYA, MEMBER (TECHNICAL) Ms. Shagun Arora Shri Kunal Agarwal, Advocates for the Appellant. Shri Rajeev Kapoor, Authorized Representative for the Respondent ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant. The Cenvat credit of service tax paid thereupon is rightly been claimed. With these submissions, the order under challenge is prayed to be set aside and appeal is prayed to be allowed. 3. Per contra, the learned Departmental Representative has impressed upon no infirmity in the order under challenge. It is mentioned that the order has been passed in compliance of the Circular No. 137/315/2007 dated 26.02.2008 and has been passed after relying upon several decisions of this Tribunal as well as of Hon ble High Court of Bombay wherein it was held that pre-fabricated building/towers since are fastened to earth, after their erection, these structures become immovable property and hence cannot be called as capital goods. Cenvat credit cannot be availed on such goods. However, learned Departmental Representative while conceding to decision of Hon ble Supreme Court in Vodafone Mobile Services (supra) case, it is mentioned that another party on the similar issue has gone in appeal before Supreme Court another party other than Vodafone appeal is pending consideration. Learned counsel for the appellant has rebutted the same that no stay has been granted in this case. Learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 3 of the Transfer of Property Act, Section 3(25) of the General Clauses Act, it is evident that in an immovable property there is neither mobility nor marketability as understood in the excise law. Whether an article is permanently fastened to anything attached to the earth requires determination of both the intention as well as the factum of fastening to anything attached to the earth. And this has to be ascertained from the facts and circumstances of the case. In the case of Sirpur Paper Mills Ltd. Vs. Collector of Central Excise, Hyderabad - 1997 (12) TMI 109 (SC), Hon ble Supreme Court observed that merely because a machine is attached to earth for more efficient working and operations it would not per se become the immovable property. Above all, if any article is an immovable property, it cannot be termed as excisable goods for the purpose of the Act. Admittedly, the goods erected out of the pre-fabricated structure in question is the outcome of MS angles and channels which are excisable goods in its CKD condition. Mere assembly of the said excisable CKD structure with the help of nuts and bolts will not take the item/good out of the scope of excisablity and thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Credit Rules. The definition of inputs does not contain any condition relating to emergence of immovable property to be ineligible for taking credit. (ix) Towers, which are received in CKD condition, are assembled/erected at the site subsequently giving rise to structure that remains immovable till its use for safety, stability and commercial reasons, cannot be disentitled for credit. The fact that goods are later on fastened to earth cannot make them non-excisable. (x) Further, in any case, immovability cannot determine eligibility to avail credit. Emergence of immovable property in the intermediate stage also cannot disentitle the assessee from availing credit. (xi) Several High Courts in different contexts have taken a view that credit of Excise Duty and Service Tax paid would be available irrespective of the fact that inputs and input services were used for creation of an immovable property at the intermediate stage, if it was ultimately used in relation to provision of output service or manufacturing of final products. 6. The relevant portion of the said decision is reproduced as under:- 65. The above analysis shows that the definition of input does not co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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