Customs, Excise and Gold Tribunal - Bangalore
Vishwakarma Refractories Ltd. vs Cce on 11 December, 2001
Equivalent citations: 2002(100)ECR517(TRI.-BANGALORE), 2002(148)ELT122(TRI-BANG)
ORDER G.A. Brahma Deva, Member (J)
1. This appeal arises out of and is directed against the order-in-appeal No. 128/97, dated 17.4.1997 passed by the Commissioner of Central Excise (Appeals), Bangalore.
2. The point to be considered in this case is whether the angles, plates and joists used for construction of their factory building including kiln as a part of their expansion programme are eligible to modvat credit as capital goods under Rule 57Q of the Central Excise Rules.
3. Shri Monappa, learned Counsel arguing for the appellants tried to convince that the above items are part of the plants and accordingly, items are eligible for modvat credit in terms of Rule 57Q but in vain. On going through the explanation 1A to Rule 57Q, in view of the wordings machines, machinery, plant, equipments, operators etc., he fairly conceded that the above items which are used in building cannot be considered to be part of plant and accordingly is not pressing the eligibility of the modvat credit in respect of the above items. Nevertheless, he said that the items which are used in the kiln are eligible capital goods to avail the modvat credit in terms of Rule 57Q of the Central Excise Rules. In this context, he referred to the decision of the Tribunal in the case of J.K. Cement Works wherein it was held that plain plates used for repairing the worn-out/broken parts of the kiln shell eligible to Modvat as kiln is a part of the plant in the factory. He said that since the items are used as kiln in turn as a part of the plant in the factory they are eligible for modvat credit.
4. Both the sides fairly conceded that the issue with reference to the kiln has not been properly considered by the authorities below. In view of the submissions made by both sides, taking into consideration that there is no clear finding with reference to the kiln, I am of the view that matter requires to be examined on the limited portion. Accordingly, matter is remanded to the adjudicating authority to examine to what extent the items have been used in the kiln and subject to the finding he may pass an order providing an opportunity to the appellant. On the issue of eligibility of modvat credit on the items which are used in the construction of factory building, the appellant fails. Thus this appeal is disposed off in the above terms.
(Pronounced and dictated in open Court)