TaxTMI 
TaxTMI 
2014 (10) TMI 722
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.... was taken on various items such as plates, sections, columns, staging material etc. which were not used in the manufacture of specified goods. The appellant had availed MODVAT credit on the basis of suppliers invoices for the items under Chapter 84 which were duly mentioned in the invoices in respect of the supplies of parts used for capital goods. It was alleged that these goods were used in the manufacture of specified goods in the factory of the appellant. The goods so received such as plates, sections, sheets, staging material, etc. were used in the factory of the appellant for the purpose of constructing platforms for the use of running of machinery, for supporting equipments used in the factory. Based on the scrutiny, the Deputy Commissioner, Central Excise, Saharanpur issued a show cause notice to the appellant to show cause as to why the MODVAT credit availed by the appellant on the items such as plates, sections, columns, staging material, etc. under Rule 57-Q of the Rules should not be disallowed contending therein that these items cannot be termed as "components, spares or accessories in the light of the definition of "Capital Goods". The appellant submitted a det....
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....iction over the user of the goods, consequently, the goods classifiable under Chapter 84, being capital goods, the appellant was eligible to claim MODVAT under Rule 57-Q of the Rules. In support of the submission, the learned counsel placed reliance upon a decision of the Supreme Court in Sarvesh Refractories (P) Ltd. vs. Commissioner of Central Excise & Customs, 2007 (218) E.L.T. 488 (S.C.) as well as a decision of the Madras High Court in Commissioner of Central Excise Pondicherry vs. Mohan Breweries & Distilleries Ltd., 2010 (259) E.L.T. 176 (Mad.). On the other hand, Sri B.K.S.Raghuvanshi, the learned counsel for the Department contended that Rule 57-Q of the Rules only provides for taking credit of Central Excise Duty paid on capital goods, which are used by the manufacturer in the manufacture of specified goods. It was contended that the goods specified as capital goods has been annexed in the table annexed to the Rule and, therefore, the benefit of credit of duty could only be extended to those capital goods which found place in the said table. The learned counsel contended that from a perusal of the table annexed to Rule 57-Q of the Rules, clearly showed that items falli....
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....211.11, 7211.19, 7211.30, 7211.52, 7211.59, 7211.60, 7211.92, 7211.99, 7213.90, 7214.90, 7215.90, 7216.10 and 7216.90 on which duty is paid under section 3A of the Central Excise Act, 1944 (1 of 1944).] 2. All goods falling under chapter 84 (other than internal combustion engines falling under heading No.84.07 or 84.08 and of a kind used in motor vehicles, compressors falling under heading No.84.14 and of a kind used in refrigerating and airconditioning appliances and machinery, heading or sub-heading Nos.84.15, 85.18, 8422.10, 8424.10, fire extinguishers falling under sub- heading No.8424.80, 8424.91, 8424.99, 84.29 to 84.37, 84.40, 84.50, 84.52, 84.69 to 84.73, 84.76, 84.78, expansion valves and solenoid valves falling under sub- heading Nos.8481.10 of a kind used for refrigerating and airconditioning appliances and machinery. 3. All goods falling under chapter 85 (other than those falling under heading Nos.85.09 to 85.13, 85.16 to 85.31, 85.39 and 85.40); 4 All goods falling under heading Nos.90.11 to 90.13, 90.16, 90.17, 90.22 (other than for medical use), 90.24 to 90.31 and 90.32 (other than of a kind used for refrigeration and air conditi....
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....ufactured by him for the manufacture of final products in his factory. (7) The credit of the specified duty on capital goods [other than those capital goods covered under S.No. 5, 7, 10, 11 and 12 of column (2) of the Table below sub-rule (1)] and received in the factory on or after the 1st day of January, 1996, shall not be taken on a date prior to the date on which such capital goods are installed or, as the case may be, used for manufacture of excisable goods, in the factory of the manufacturer as certified by such manufacturer or a person designated by him for this purpose. (8) Notwithstanding anything contained in sub-rule (7), a manufacturer intending to remove the capital goods from his factory for home consumption or for export, prior to their being installed or used, as the case may be, shall be allowed to take credit on the date on which such capital goods are so removed by him from his factory on payment of the appropriate duty of excise leviable thereon as provided in rule 57S." A perusal of the aforesaid Rule 57-Q of the Rules indicates, that it provides for taking a credit of Central Excise Duty paid on capital goods used by a manufacturer in the manufacture ....
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....g Mills Ltd. (supra) is distinguishable as in that case the Supreme Court after applying the user test found that the steel plates and MS channels was used for the fabrication of Chimney which would fall within the ambit of capital goods, under Rule 57-Q of the Rules for the reason that the Chimney was an integral part of the diesel generating set particularly when the Pollution Control Laws made it mandatory that all plants which emits effluents has to be equipped with an apparatus that could reduce or get rid of the effluent gasses. The Supreme Court held, that the Chimney constructed for the purpose of reducing the effluent gases was to be treated as an accessory under Rule 57-Q of the Rules. Similarly, in Jawahar Mills Ltd. (supra) the Supreme Court held that the definition of capital goods was very wide and in view of the liberal language of the provision it was required to be found out as to whether an item falls within the definition of capital goods would depend upon the user which is put to. If the goods are not used for manufacture of a final product or is not used as an input, then it would not come under the purview of capital goods. In the light of the aforesaid, we....