2009 (1) TMI 270

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....eading No 1701.31/1701.39 of Central Excise Tariff Act, 1985 and are discharging the appropriate duty liability. The appellant herein had taken Cenvat credit to the tune of Rs. 31,48,420/- on MS plates /Mill Plates, MS Angles, MS Channels, MS Beams and Welding Electrodes used for the manufacture of capital goods (storage tanks). Revenue was of the view that the said inputs are not entitled for the Cenvat credit, hence, issued show cause notice to the appellants for irregular availment of Cenvat credit and also for recovery of interest and imposition of penalty. The appellant resisted the said show cause notice on various grounds. The Adjudicating Authority after considering the submissions made by the appellants vide Order-in-Original dated....

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....ems in question are not capital goods as they are not figuring under the definition of 'capital goods'. It is also her submission that even Explanation 2 to Rule 2(k) of Cenvat Credit Rules, 2002/2004 will not help the appellant in this case. She would submit that the huge storage tanks which are fabricated not movable and they cannot be considered as excisable goods. 5. We have considered the submissions made by both sides and perused the records. It is undisputed that the appellant in this case has taken the Cenvat credit of the items i.e. MS plates/Mill Plates, MS Angles, MS Channels, MS Beams and Welding Electrodes. It is also undisputed that these items are used in the manufacture/fabrication of capital goods (storage tanks) in the ....

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....d order has held that the power plant was an excisable commodity and therefore the Modvat credit is not deniable. Then, in the present appeal, filed by the Revenue when there is no challenge to these findings of the Commissioner nor is there a proposal/ground taken to revive the allegations in the show cause notice. Then, such appeals are not maintainable. (b) It is settled, by the following decisions, that where the items on which credit is taken are assembled into an immovable property, credit cannot be denied on the ground of the immovable property being non-excisable goods: (a) Lloyds Metals & Engineers Ltd. v. CCE, Nagpur - 2002 (150) E.L.T. 638. (b) United Phosphorus Ltd. v. CCE & Cus., Vadodara - 2002 (150) E.L.T. 650. Fo....