TaxTMI 
TaxTMI 
2010 (8) TMI 281
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....g 8429.00 is one of the specifically excluded items for the grant of the said benefit under Rule 57-Q and the table annexed to it". 2. We heard Mr. K. Ravi Anantha Padmanabhan, learned Senior Counsel for the appellant and Mr. C. Saravanan, learned counsel for the first respondent. 3. The short facts which are required to be stated are that the first respondent is engaged in the manufacture of glass bottles falling under Chapter 70 of the Central Excise Tariff. On verification of MODVAT documents for the month of October, 1999, the authorities of the appellant noticed that Rs. 3,44,000/- was availed as credit on Capital Goods for No. 1 of Hindustan 2021 Loader with 2 Bar, which was classified by invoice No. 20076 dated 21-8....
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....er 84.29 having regard to the decision of the Hon'ble the Supreme Court in the decision in Sarvesh Refractories (P) Ltd. v. Commissioner of C. Ex & Customs - 2007 (218) E.L.T. 488 (S.C.), the Tribunal was not justified in law in having reclassified the product under the heading 84.28. Learned Senior Standing Counsel for the appellant also contended that indisputable product for which MODVAT credit was claimed by the first respondent is called 'shovel loader' and that as per the description found in heading 84.29 shovel loader is one of the items and that by no stretch of imagination it would fall under the heading 84.28 under which classification the items viz., on the other lifting, handling, loading or unloading machinery (for example lif....
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....lassifying the capital goods as one falling under the heading 84.28. 6. Having considered the submissions of respective counsel, we find that the Commissioner of Appeals as well as the Tribunal have committed serious error in classifying the capital goods as one falling under 84.28. The decision reported in 2007 (218) E.L.T. 488 (S.C.) supra, the Hon'ble Supreme Court set at rest the legal position as under in paragraph No. 6 which reads as under : "The finding recorded by the Tribunal is unexceptionable. We agree with the view taken by the Tribunal that the appellant could not get the classification of Loadall' changed to Heading 84.27 from 84.29, as declared by the manufacturer insofar as the penalty imposed by the authority-i....
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....pecific product in a specific description falling under specific heading having been specifically excluded for claiming MODVAT credit under Rule 57-Q read along with the table annexed to it, it will not be permissible for any authority much less, for this Court to countenance such a claim. 7. As far as the reliance placed on the decision reported in 2010 (255) E.L.T. 481 (S.C.) is concerned, that was a case where a Textile Mill which used steel plates and M.S. channels used fabrication of chimney for diesel generating set, claimed Modvat credit on capital goods. It contended that fabrication of chimney was an integral part of the diesel generating set and therefore, it would fall under other accessories and components as described ....