TaxTMI 
TaxTMI 
TaxTMI 
2010 (6) TMI 214
X X X X Extracts X X X X
X X X X Extracts X X X X
....vat credit claimed on that item. 2. In so far as the Cenvat credit claimed by the appellant on tower and parts thereof is concerned, learned Commissioner dealt that aspect in para 29 of the order and negated claim of the appellant in para 29(a) of the order holding that not to be capital goods. According to him the items to be eligible to cenvat credit as capital goods should be covered under Chapters 82, 84, 85, 90, 68.02 and sub heading No. 6801.10 of the First Schedule to the Central Excise Tariff Act, 1985. But the tower not falling in any of the above tariff entries do not qualify to be capital goods for claim of Cenvat credit. He also held the parts of tower equally do not satisfy the conditions of admissibility of Cenvat credit as capital goods when the tower itself fails to qualify to be capital goods. So also the goods in question i.e. tower and parts thereof was foun4 by the learned adjudicating authority fixed to earth. Consequent upon embedding the same upon erection that became immoveable property without being movable goods and failed to be capital goods. The tower and parts thereof even in CKD or SKD condition do not fall under Chapter heading 7308 of the tariff lis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s, it should then fall under the category of input. The Tribunal when passed an order on 21-9-2005 in the case of CCE v. Ispat Industries Ltd., [2009 (195) E.L.T. 164 (Tri.-Mumbai)] with the finding that the angles, channels, plates, etc. being structural items for the machinery makes the machines functional without any vibration or movement entitles the assessee to avail modvat credit as capital goods in the said decision and against that decision Revenue's appeal was dismissed by Hon'ble High Court of Bombay in Central Excise Appeal No. 187 of 2006, this appellant is entitled to the credit on such capital goods. Similarly on a question whether the components of diesel generating power plant used in manufacture of final product was eligible to Cenvat credit, Tribunal allowed the credit. That was also in the Excise application No. 11/2002 before the Hon'ble High Court of Bombay. The appellant was held to be entitled to the Cenvat credit on the above two types of goods. Learned Counsel further submitted that the appellant paid excise duty on tower. 6. So far as the claim that tower input is concerned, the learned Counsel relied upon the judgment of the Tribunal in its o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... [2010 (253) E.L.T. 440 (Tri.-LB) = 2010-TIOL-624-CESTAT-DEL-LB]. In Maruti Suzuki's case Apex Court has laid down the law that the output when depends on the inputs and both have integral connection, nexus and intimacy as well as relevancy, the appellant shall be allowed Cenvat credit on that input. Mere use of certain goods shall not ipsofacto become input. In the absence of such tests being satisfied by the appellant, it is not entitled to any credit. Similarly in Vandana Global Ltd's decision, the Larger Bench has considered the admissibility of Cenvat credit upon satisfying the tests as referred to in para 49 of the order reading as under "In the light of the foregoing, we answer the questions referred to the Larger Bench as follows :- (a) The term "capital goods" has been defined in the Cenvat Credit Rules, which in turn have been framed under the rule making powers conferred under Section 37(2) of the Act. The said Section refers to credit of duty paid on goods used in, or in relation to the manufacture of excisable goods. Hence, 'capital goods' defined in the Cenvat Credit Rules in the context of providing credit of duty paid, have to be excisable goods. W....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o also we are not satisfied that the tower is capital goods. Also the pre-fabricated buildings for the most reasoned and speaking order passed by learned Adjudicating authority shall not be capital goods. 13. In so far as pleading of the appellant that the above two items are inputs is concerned we are also not prima facie satisfied that these goods have satisfied the tests laid down by Apex Court in Maruti Suzuki Ltd. case. When the appellant pleads that antenna is a capital goods on which Cenvat credit was permitted by para 29(c) of the order-in-original, claim of tower as well as pre fabricated building as input is inconceivable. Hon'ble Supreme Court in para 11 of the Maruti Suzuki Ltd. judgment held that the goods shall be said to be used in the manufacture should be integrally be connected with the ultimate production. In para 12 it was held that the goods should have natural play in the use for manufacture. The intention of the Legislature is that inputs falling in the inclusive part should necessarily have nexus with the manufacture of the final products. This comes out from para 14 of the judgment. It is the functional utility of the goods, which receives relevant con....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 1985 (20) E.L.T. 179 (S.C.). 16. Prima facie, the appellant has not brought out its case for total waiver of pre-deposit during pendency of appeal since appeal is a conditional right granted by law as held in the case of Vijay D. Mehta - 1989 (39) E.L.T. 178 (S.C.) = 1988 (4) SC 402. Balance of convenience does not tilt in favour of the appellant. There was no case made out to show that irreparable injury or undue hardship shall be caused to the appellant if no full waiver is granted. So also, neither materials were produced nor was financial hardship pleaded in the course of hearing. Rather, Revenue appears to be prejudiced if realization of demand is stayed following decision of Apex Court in Benara Valves case - 2008 (12) S.T.R. 104 (S.C.) = 2006 (204) E.L.T. 513 (S.C.) and M/s. Indu Nissan Oxo Chemical Indus tries Ltd., v. UOI - 2008 (221) E.L.T. 7 (S.C.). The applicable principles have also been set out succinctly in Silliguri Municipality and Ors. v. Amalendu Das and Ors. (AIR 1984 SC 653), M/s. Saniarias Trading Co. Pvt. Ltd. v. Samuel and Ors. (AIR 1985 SC 61) and Assistant Collector of Central Excise v. Dunlop India Ltd. - 1985 (19) E.L.T. 22 (S.C.) = AIR 1985 SC 300). W....