TaxTMI 
TaxTMI 
2014 (11) TMI 27
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.... accessories of the aforesaid machines, machinery, plant, equipment, apparatus, tools or appliances used for aforesaid purpose ; and (c) moulds and dies, generating sets and weigh bridges used in the factory of the manufacturer. 1.2 With effect from 16/03/95 by a Notification No. 11/1995-CE (NT), clauses (d) and (e) were also added to the above definition of capital goods. The items added vide clause (d) and (e) to the definition of capital goods w.e.f. 16/03/95 are as under :- (d) following goods falling within the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) and used in the factory of the manufacturer - (i) all goods falling under heading Nos. 84.02, 84.05, 84.06,?84.11, 84.12, 84.16, 84.17, 84.19, 84.21, 84.23, 84.25 to 84.28, 84.80, 85.05, 85.35, 90.11, 90.12, 90.13, 90.16, 90.17 and 90.24 to 90.31. (ii) auxiliary plants falling under heading 84.04 for use with boilers of heading 84.02. (iii) I.C. engines (other than engines of motor vehicle) falling under heading 84.07 or 84.08. (iv) compressors (other than of a kind used for refrigerating?and air conditioning applications) falling under heading 84.14. (v) electric generating sets (of output exceeding 7....
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....the at C special, fire crete, air compressors, spare parts for compressors, air cylinders, spare impeller, grate bar, great plate, Fork lifter truck and lifting chain. In the appeal before the Tribunal, it is pleaded that all these items which got specifically covered by the definition of capital goods by Notification No. 11/95-CE (NT) dated 16/03/95, were covered by the definition of 'capital goods' even before 16/03/95 i.e. during the period of dispute, in view of the Larger Bench judgment of the Tribunal in the case of CCE, Indore vs. Surya Roshini Ltd. reported in 2001 (128) E.L.T. 293 (Tri. - LB). As regards the items used for repair and maintenance of the plant and machinery it was pleaded that the capital goods Modvat credit was admissible in view of the judgment of the Apex Court in the case of CCE, Coimbatore vs. Jawahar Mills Ltd. reported in 2001 (132) E.L.T. 3 (S.C.). The appeal was decided by this Tribunal vide final order No. 217/2010-EX dated 30th April 2010 by which the appeal was dismissed and order of the Commissioner (Appeals) was upheld in toto. With regard to the items which were specifically brought within the purview of the term 'capital goods' by Notificatio....
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....issioner (Appeals) and held that there is no mistake in the Tribunal's final order dated 30th April 2010, that the Larger Bench judgment in the case of CCE, Indore vs. Surya Roshni Ltd. (supra) has nowhere held that the goods brought within the purview of the definition of capital goods by Notification No. 11/1995-CE (NT) were eligible for Modvat credit even during the period prior to 16/03/95, that on the contrary, in para 12 of the order, the Tribunal has held that the effect and ambit of notification issued in 1995 and 1996 enlarging the ambit of Rule 96Q cannot have any retrospective effect, that it is only w.e.f. 16/03/95 that the goods brought within the purview of the definition of capital goods by Notification No. 11/95-CE (NT) would be eligible for Modvat credit, even if they do not satisfy the three tests mentioned in second part of the clause (a) of the definition of capital goods, but for the period prior to 16/03/95 the goods, for being eligible for capital goods Modvat credit, must be covered by the clause (a), (b) and (c) of the definition of capital goods i.e. the goods must be either the machinery, machines, plant equipment apparatus, tools or appliances used for p....
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....tention is that in terms of Larger Bench judgment of the Tribunal in the case of CCE, Indore vs. Surya Roshini Ltd. reported in 2001 (128) E.L.T. 293 (Tri. LB), the amendment to Rule 57Q (1) by Notification No. 11/95-CE (NT) dated 16/03/95 has to be treated as retrospective amendment as these items were covered by the definition of capital goods, even prior to 16/03/95 and that though this plea had been made by the appellant but the same was not considered by the Tribunal. Ongoing through the Larger Bench judgment in the case of CCE, Indore vs. Surya Roshini Ltd. (supra), it is seen that the Tribunal in para 12 of the judgment has observed that the goods brought within the purview of this Rule by Notification No. 11/95-CE (NT) dated 16/03/95 would be eligible for Modvat credit w.e.f. 16/03/05 even if they do not satisfy any of the three tests mentioned in the second part of the clause (a) of the explanation and that such goods even if they do not satisfy the tests will be eligible for Modvat credit by specific inclusion in the definition of capital goods by the notification w.e.f. the date of the notification and that the effect and ambit of the notifications issued in 1995 a....
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....e of durability. It therefore, satisfies the definition of plant. 40. Similarly, the other items involved in these cases namely control panels, cables, welding electrodes, etc. will also qualify as capital goods under Rule 57Q and would be eligible for Modvat credit and we order accordingly. 41. In the light of the above, the issue as to whether the amendment effected in Notification 11/95, dated 16-3-1995 under Rule 57Q and Notification 14/96-C.E. dated 23-7-1996 is retrospective, becomes academic. We have to decide the matter according to the language of the provision as it stood at the material time. We are required to examine Explanation 1(a) as it stood in 1994-95 and 1995-96 and we therefore, see force in the contention of the assessees that the items which are recognised as eligible to capital goods credit by Notification 14/96 are items covered by Explanation 1(a) and it cannot be contended by the Revenue that these items are not covered by the Headings mentioned in Notification 14/96 or that the items are not capital goods within the meaning of Explanation 1(a) under Rule 57Q as it stood during the relevant period. 7. Civil appeal filed against the above order of the T....