2022 (1) TMI 1119

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....to the earth, which is not excisable goods. Against the said order, the appellant is before us. 2. Ld. Counsel for the appellant submits that in their own case for the earlier period, this Tribunal vide Final Order No.61158- 61161/2019 dated 17.12.2019 has allowed the cenvat credit to the appellant and which is subsequent to the issuance of show cause notice and following the order of this Tribunal, the impugned order is set aside. 3. On other hand, ld.AR insisted that the appellant had entered into composite lump sum turnkey contract for various EPCC projects with certain contractors to set up a plant in their premises to manufacture naphtha as these contractors are joint company are made turnkey basis. Therefore, the raw material is....

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....ficers of the appellant company who were associated with setting up of Nephtha Cracker Plant. After scrutiny of the documents of contractors of the appellant for various contracts and enquiry with their officers, the investigating officers were of the view that the appellant are not eligible for capital goods Cenvat Credit in respect of various items of machinery, equipment and instruments falling under Chapter 84, 89 & 90 of the Tariff and other items mentioned in Rule 2(a) of the Cenvat Credit Rules, 2004, inasmuch as the contractors of the appellant had only installed the plant fixed to earth, which is nonexcisable. Accordingly, the Show Cause Notice was issued to the appellant for recovery of allegedly wrongly taken capital goods Cenvat....

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....ovable property. Against the said order, this appeal has been filed. 6. Considering the fact that in the appellant's own case for the earlier period, this Tribunal has observed as under:- "6. We have considered the submissions from both the sides and perused the records. The Cenvat Credit, in question, has been taken in respect of various items of the machinery. It is not disputed that the goods in respect of which Cenvat Credit, in question, has been taken are covered by the Chapter 84, 85 & 90 of the Central Excise Tariff or are the item specifically mentioned in Rule 2(a) and accordingly are covered by the definition of the 'capital goods' as given in Rule 2(a) of Cenvat Credit Rules. The Department seeks to deny the Credit C....

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....l goods the machinery, equipment or instruments covered by Chapter 84, 85 & 90, pipes and tubes, pollution control equipment refractories, and storage tanks are required to be installed and after installation, the same put together constitute a manufacturing plant, which is a fixed to earth structure. Just because after being installed in the factory, the capital goods put together become a plant which is a fixed to earth structure, the Cenvat Credit cannot be denied on the basis that the plant which is fixed to earth structure, is not excisable. This preposition of the Department is, in fact absurd, as there is not such condition in Rule 2(a) for capital goods. For capital goods Cenvat Credit, the items must be among those mentioned in thi....