TaxTMI 
TaxTMI 
2017 (2) TMI 12
X X X X Extracts X X X X
X X X X Extracts X X X X
....ue in all the four appeals is common and therefore, all the four appeals are being disposed of by this common order. 2. Briefly the facts of the case are that the appellant is engaged in the manufacture of liquid oxygen, liquid nitrogen, medical oxygen IP and carbon-dioxide falling under Chapter 28 of First Schedule to Central Excise Tariff Act (CETA), 1985 and they are availing credit of duty paid on inputs and capital goods under the provisions of CENVAT Credit Rules (CCR), 2004. The company had been procuring goods viz., vertical cryogenic storage tanks, portable cryogenic vessels and their components falling under SH No.84198910 and 84818090 of the First Schedule to CETA, 1985. The Department observed that the appellant had availed irr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that the company has used the storage tanks for rendering a taxable service falling under the category of storage and warehousing services as defined under provisions of Section 65(105)(zza) of the Finance Act, 1994 as amended. He further submitted that appellant had voluntarily disclosed the tax liability and also paid the tax thereon. Therefore, the company is eligible for the credit of duty paid on the storage tank as per the ratio laid down in the case of Ajay Industrial Corporation vs. CCE, Meerut: 2002 (147) ELT 786. He also submitted that the portable cryogenic vessel is used as a packing material for the manufacture of liquid oxygen. It is in fact in the nature of durable and returnable packing material belonging to the company and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ustomers and not in the premises of the manufacturer. As per the definition of Capital Goods under rule 2(a) of CCR, the said goods should be used in the factory of the manufacturer of the final products. In the instant case, the goods are not installed and used in the factory of the manufacturer and hence, the credit availed is irregular. I do not agree with the contention of the Appellants that the said goods were used for the activity of providing storage facilities as defined under 65(102) of the Finance Act, 1994 and hence, credit should be available under rule 2(a) as the goods 'used for providing output service'. During the relevant period, the Appellants were not registered service providers (ST registration was obtained onl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nwards, the said containers cannot be held to be 'inputs' as per the amended rule 2(k) of CCR as they are not used in the factory but for supply/ transportation of gases. The adjudicating authority has relied upon the decision of the Hon'ble Tribunal in the matter of Narmada Chematur Petrochem Ltd., Vs. CCE, Vadodaro-11 - 2008 (232) ELT 850 (Tri.-Ahmd.), which is disputed by the Appellants. However, I find that the said decision is squarely applicable as it has been held in the said case that "To be eligible as input as a packaging material, the cost of the packing material should have been included in the assessable value." In this case, as the said Portable Cryogenic Vessels are durable and returnable containers, the question ....