2015 (8) TMI 1336

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....ement. They claimed exemption under the Notification No.67/95 CE dated 16.3.1995. 4. Claiming that the assessee failed to furnish certain particulars, show cause notices were issued calling upon them to show cause as to why the declaration filed under Rule 57A should not be rejected under Rule 57G. 5. Thereafter, a scrutiny of RT 12 returns filed by the assessee were made and they were alleged to have wrongly taken modvat credit for the capital goods declared as per the aforesaid declaration. Hence, contending that they are not entitled to avail modvat credit for the capital goods declared under Rule 57G, three show cause notices were issued by the Superintendent of Central Excise respectfully on 16.5.1997, 21.11.1997 and 5.5.1998. 6. After the assessee gave their reply, the Assistant Commissioner passed three orders in original bearing numbers 133, 153 and 154 of 1998 dated 29.6.1998, 28.7.1998 and 28.7.1998 respectively, expunging the modvat credit availed by the assessee to the extent indicated in each of those order in original. 7. The assessee filed three independent appeals under section 35 before the Commissioner of Central Excise (Appeals). The Commissioner, by a common....

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....e foundation on which machinery is fixed to function effectively? 2. Whether modvat credit is admissible on cement and steel angles used in the construction of support structure for providing support to machinery employed in manufacture of final product?" 12. As can be seen from the two questions of law framed, the assessee claimed modvat credit, first in respect of cement and steel used in laying the foundation on which the machinery is fixed. The second claim is for modvat credit on cement and steel angles used in the construction of support structure for the machinery employed in manufacture of final product. 13. It is seen from the decision in COMMISSIONER OF CENTRAL EXCISE v. INDIA CEMENTS LTD. (2012 (285) ELT 341 (Madras)) that a Division Bench of this court held that the structural steel items such as Rebar Coils, CTD Bars, TOR Steel and Cement used for construction activity, being in the nature of building materials, are capital goods eligible for credit in terms of Rule 57Q. Similarly, in COMMISSIONER OF CENTRAL EXCISE v. INDIA CEMENTS (2014 (305) ELT 558), this court held that structural steel items such as M.S. Plates, Angles, Channels and HR Sheets used for civil co....

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....cessories of the final product cleared alongwith such final product, the value of which is included in the assessable value of the final product,  but does not include -- (i) (i) machines, machinery, plant, equipment, apparatus, tools, appliances, or capital goods as defined in rule 57Q (other than those used as component parts in the manufacture of final product) used for producing or processing of any goods or for bringing about any change in any substance in or in relation to the manufacture of the final products or used for any purpose in the factory; (ii) packaging materials in respect of which any exemption to the extent of the duty of excise payable on the value of the packaging materials is being availed of for packaging any final products; (iii) packaging materials or containers, the cost of which is not included in the assessable value of the final products under section 4 of the Act; and (iv) crates and glass bottles used for aerated waters. (2) Notwithstanding anything contained in sub-rule (1), the Central Government may, by notification in the official Gazette, declare the inputs on which declared duties of excise or additional duty (hereinafter refer....

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....contains explanation that defines the term inputs. The explanation (a) of sub-rule (1) makes it clear that the expression input would include inputs which are manufactured and used within the factory of production in or in relation to the manufacture of the final products. Therefore, if an assessee is able to show that he is manufacturing finished excisable goods which are covered by a notification and if he is able to establish that he has paid a duty of excise or additional duty on goods used even in relation to manufacture of a final product, he is entitled to credit irrespective of the fact whether those goods are contained in the final product or not. 18. The explanation under sub-Rule(1) excludes certain items from the definition of the expression inputs. Machines, machinery, plant, equipment, apparatus, tools, appliances which are capital goods as defined in Rule 57Q are not included within the meaning of the expression inputs under the explanation under sub-Rule (1) of Rule 57A. Therefore, the claim of the Revenue and to some extent by the assessee is that the cement and steel used in the construction of the foundation and the cement and steel and angles used in the constr....

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....os.85.09 to 85.13, 85.16 to 85.31, 85.39 and 85.40); (c) all goods falling under heading No.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-conditioning appliances, and machinery); (d) components, spares, and accessories of the goods specified against items (a) to (c) above; (e) moulds and dies; (f) refractories and refractory materials; (g) tubes and pipes and fittings thereof, used in the factory; (h) pollution control equipment; and (i) grinding wheels and the like goods falling under sub-heading No.6801.10. (2) "specified duty" means duty of excise or the additional duty under section (3) of the Customs Tariff Act, 1975 (51 of 1975). (2) Notwithstanding anything contained in sub-rule (1), - (i) no credit of the specified duty paid on capital goods (other than those capital goods in respect of which credit of duty was allowable under any other rule or notification prior to the 23rd day of July, 1996) shall be allowed if such capital goods were received in the factory before the 23rd day of July, 1996.) (ii) no credit of the specified duty paid on capital goods ot....