2003 (2) TMI 146

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....ant had emerged as an immovable property. The show cause notice therefore alleged that the provisions of sub-rule (2) of Rule 57R would provide a protection only in respect of intermediate goods which were exempted or chargeable to 'Nil' rate of duty and did not cover non-excisable goods or immovable property. 2.The Commissioner passed the impugned order, holding that the power plant was a marketable product and therefore excisable goods; that the said power plant being used within the factory of production was exempt from payment of duty vide Notification No. 67/95-C.E., dated 16-3-1995 as amended. The Commissioner therefore held that since the power plant was exempt from payment of duty, the Modvat credit is available in view of the pr....

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....3) of the table under sub-rule (1) of Rule 57Q. Thus the rule does envisage coming into existence of exempted intermediate products [vide main provision of sub-rule (2)] but only if these find a mention in the table referred above, the Modvat credit shall not be denied. (b)        The interpretation given by the Commissioner shall reduce the proviso to a nullify if intermediate items not mentioned in the table as a final product were to qualify the related capital goods as available for credit. (c)        Rule 57R(2) of the Central Excise Rules, 1944 only specifies the conditions under which the credit should not be varied or denied provided the intermediate goods a....

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....e 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. Following the same, there is no case made out ab initio. (c)&n....