TaxTMI 
TaxTMI 
2026 (3) TMI 101
X X X X Extracts X X X X
X X X X Extracts X X X X
....vailing the benefit of Cenvat credit of the duty paid on inputs, capital goods and input services as per the Cenvat Credit Rules, 2004. Alleging that the Cenvat credit availed on 'transit concrete mixer' and 'FB Tipper' illegally for the period from March and April 2011, proceedings were initiated and show cause notice was issued, thereafter adjudication authority as per the order dated 28.11.2013 confirmed the demand with interest and also imposed penalty. Aggrieved by the said order an appeal was filed before Commissioner (Appeals) who as per the impugned order dated 30.12.2014 partially allowed the appeal setting aside the penalty imposed under Section 11AC of the Central Excise Act, 1944. Aggrieved by said order present appeal is filed. 4. Learned Counsel for the appellant during the hearing submits that the 'transit concrete mixer' and 'FB Tipper' are inputs whereas they actually availed Cenvat credit under the category of capital goods and the two categories are not one and the same but are separate and distinct entities in their own. Learned Counsel submits that Ready Mix Concrete (RMC) manufactured by the appellant cannot be transported in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ifically covered under Chapter 8428 of the Central Excise Tariff Act, 1985 and hence, are specifically covered under the definition of capital goods as rightly held in the following decisions:- i. GNFC Ltd. Vs. CCE., Vadodara - 2012 (278) E.L.Τ. 273 (Tri. -Ahmd.) ii. National Oxygen Ltd. Vs. CCE., Pondicherry S.T.R. 330 (Tri.-Chennai) 2017 (47) iii. CCE., Tiruchirappalli Vs, India Cements Ltd. - 2012 (285) ELT 341 (Mad.) iv. Globe Ground India Pvt. Ltd. Vs. CCE & ST., Delhi-IV - 2015 (38) STR 510 (Tri-Del.) v. Upheld by the Delhi High Court in CST., New Delhi Vs. Globe Ground India Pvt. Ltd. 2015 (40) STR 417 (Del.) vi. CCE., Coimbatore Vs. Jawahar Mills Ltd. 2001 (132) ELT 3 (SC) vii. CCE., Jaipur Vs. Rajasthan Spinning & Weaving Mills Ltd. -2010 (255) ELT 481 (SC) viii. Hira Power & Steel Ltd. Vs. CCE., Raipur 2008 (229) ELT 408 (Tri-Del.) ix. Vikram Cement Vs. CCE., Indore - 2006 (194) ELT 3 (SC) x. Vikram Cement Vs. CCE., Indore 2006 (197) ELT 145 (SC) xi. Shripad Concrete Pvt. Ltd. Vs. CCE. & ST., Surat-I - 2025 (26) Centax 286 (Tri-Ahmd.) xii. Gunesh Logistics Vs. C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at (i) and (ii); (iv) moulds and dies, jigs and fixtures; (v) refractories and refractory materials; (vi) tubes and pipes and fittings thereof; and (vii) storage tank Used- (1) in the factory of the manufacturer of the final products, but does not include any equipment or appliance used in the office; or (2) for providing output service. From the above definition, it could be seen that Transit Concrete Mixer (falling under Chapter heading 87054000) and the FB Tipper (falling under Chapter heading 87042390) are not included in the definition of 'capital goods'. Further, I find that the definition of 'capital goods' is not an 'inclusive' definition-to include any goods by interpretative process other than those defined in the definition of 'capital goods' in Rule 2(a) of CCR. In this regard I rely on the judgement of the Hon'ble Supreme Court in the case of Vikram Cements Vs. CCE, Indore [2005 (187) ELT 145 SC], wherein it has been held that "Cenvat credit Rules give specific definition of the term 'capital goods'. It is not an inclusive definition with the remark that ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tant case, they have failed to prove the admissibility of Cenvat credit on the subject goods. The Cenvat credit was taken in contravention of the provisions of the CCR, as discussed. Hence, I uphold the decision of the Lower Authority in imposing the penalty under Rule 15(1) of CCR. However, considering their bonafides and the material (case law) relied upon by them in support, for claiming such Cenvat credit, wherein they truly believed in, reliance on their record, and as the issue involves interpretation of law, the penalty is reduced to Rupees one lakh only, in such extenuating circumstances." 8. Heard both sides and perused the records. 9. We find that the issue was considered by the Hon'ble High Court of Kerala in the matter of M/s. Neptune Ready Mix Concrete Pvt. Ltd., Vs. State of Kerala order dated 20.06.2016, where it is held that supply of Ready Mix Concrete (RMC) cannot be completed in the absence of the specialized vehicle used for transportation of RMC. Further, we find that as per the Circular No. 943/4/2011-CX dated 29.04.2011, the issue regarding how no relationship whatsoever with the manufacture of a final product to be determined is clarified as:- ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 12. As regarding Tipper, we find that issue was considered by this Tribunal in the matter of India Cements Ltd. Vs. CCE, Hyderabad - 2004 (178) ELT 194 (Tri.-Bang.), where it is held that; "14. Regarding Spares to Dumper, it was pleaded Dumper is used for transporting limestone from mines to crusher. They have captive mine adjacent to the plant and the dumper is used in the mine as well as in the factory as it is bring the raw material from mine to crusher in factory. The spares to dumper are covered by explanation 1(b) of Rule 57Q and the Modvat credit is allowable on spares to dumper. This was contested by the Revenue on the ground that the Dumpers are used in the mines and these are not eligible for Modvat credit and therefore, on the spares also credit is not allowable. The Revenue relied on the decision of Larger Bench of the Tribunal in the case of Madras Cement v. CCE, Hyderabad reported in [2003 (158) E.L.T. 293 (T) = 2003 (56) RLT 978]. We have carefully considered the submissions made by both the sides and we find that in case of Malabar Cement Ltd. v. Commissioner of Central Excise, Cochin [2002 (149) E.L.T. 751], this Bench of the Tribunal has categorically....