Judgment:
1. The above four appeals arise out of the common order-in-appeal passed by the Commissioner (Appeals) and are hence heard together and disposed off vide this common order.
2. The appellants are engaged in the manufacture of excisable goods falling under Chapter 25 of the schedule to the CETA, 1985 and availing benefit of modvat credit. Show cause notices proposing to recover credit wrongly availed were issued. By four separate orders, all dated 27/10/97, demands of Rs. 1,66,589/-, Rs. 1,76,402/-, Rs. 2,96,019/- and Rs. 3,45,146/- were confirmed and penalties of Rs. 17,000/-, Rs. 16,000/-, Rs. 20,000/- and Rs. 35,000/-, respectively were imposed. The Commissioner (Appeals) set aside certain portion of the adjudication orders, modified certain portion and remanded certain issues for denovo consideration.
4. Appeal No. E/2012/2000 relates to denial of modvat credit of Rs. 1,66,589/- on parts of ATOX-40 Raw Mill falling under CETA, sub heading 8474.90, Blow Bar for APPM 1322 falling under the same sub heading, and Spares for Stacker Reclaimer, falling under CETA sub heading 8431.00 on the ground that these items were specifically excluded from the definition of capital goods during the period in dispute, and Blowpipe for Shock Blast falling under CETA sub heading 7307.00 on the ground that these are not capital goods eligible to credit. Although, the Ld.
Counsel for the appellants contends that the credit is admissible on items at Sl.No. 1, 2 and 3 above on the ground that the Raw Mill is main machinery in Cement Industry and used to grind Lime Stone for manufacture of Cement Clinker, Item at Sl.No. 2 is a component of Shock Blaster for maintaining required temperature for manufacture of Cement Clinker and Item at Sl.No. 3 are parts of lifting and handling machinery and, therefore, entitled to credit, we find that these items undisputedly fall under headings, which have been specifically excluded from the definition of capital goods during the relevant period and, therefore, not eligible to capital goods credit, in the light of the Tribunal Order in Prism Cement Ltd. v. Commissioner of Central Excise.
Bhopal . We, therefore, uphold denial of credit of Rs. 1,65,806/- on these three items.
5. As regards item at Sl.No. 3 in the light of Tribunal's order in Indian Seamless Steels & Alloys Ltd. v. CCE, Pune , the credit is admissible. We, therefore, set aside the denial of credit of Rs. 783/- on this item. Penalty is set aside as the facts of the case do not warrant imposition of any penalty. Appeal No. E/2012/2000 is thus partly allowed as above.
6. In appeal No. E/2013/2000, credit of Rs. 99,527/- has been disallowed and penalty of Rs. 16,000/- has been imposed on the ground that the Rule 57T(2), declaration was filed for Roller Bearing falling under CETA sub heading 8482.00 and Gear Spares under CETA sub heading 8483.00, after installation/use in the factory of the appellants. In the absence of any dispute regarding the duty paid nature of the goods and use thereof in the manufacture of excisable goods, credit cannot be denied on the ground of late filing of declaration in the light of the Larger Bench's decision in the case of Kamakhya Steel Pvt Ltd. v.Commissioner of Central Excise, Meerut (LB), which has been followed in JBM Tools Ltd. v. Commissioner of Central Excise, Pune and Gail (India) Ltd. v. CCE, Kanpur 2005 (66) RLT 352 (CESTAT-Del). We, therefore, set aside the denial of credit and the penalty and allow this appeal.
7. The ground for denial of credit of Rs. 7,444/- being the duty paid on Spanner for Scrapper falling under CETA sub heading 8431.00 is non mention of the dealers stage (whether 1^st stage dealer or 2^nd stage dealer). In the light of the Tribunal's order in SRF Ltd. v. CCE, Indore 2000 (124) ELT 448 (Tri.) holding that credit cannot be denied for the action of the dealer, we hold that the appellants are entitled to the credit of amount in question. We find that [the Commissioner (Appeals) has denied credit of this amount on the ground that the item in dispute filed for classification under CETA sub heading 8431.00, which was excluded from the purview of capital goods, but this is not a ground for denial of credit in the show cause notice and, hence, we cannot sustain this finding. In the light of the Tribunal's order cited supra, Appeal No. E/2014/2000 is allowed.
8. In Appeal No. E/2015/2000, credit of Rs. 1,95,330/- has been denied on Spares for Impector, M.S. Channel and Steel Tubes. Credit of Rs. 1,55,250/- has been denied on Spares for Impector on the ground that the consignor paid only Rs. 1,03,500/- i.e. Rs. 51,750/- less paid at the time of removal of excisable goods and supplementary invoice to main invoice dated 29/04/95, relied upon by the appellants could not be co-related to the item in dispute as the invoice did not mention any description of excisable goods. Balance amount of credit has been denied on the remaining two items for the reason that they do not fall within the definition of capital goods.
9. Even before us the appellants are not being able to link the Supplementary Invoice No. 149 dated 31/05/95 with Invoice No. 40 of 29/04/95 to establish that the consignor paid Rs. 51,750/- on the items covered by Invoice No. 40. We, therefore, hold that the appellants are not entitled to credit of Rs. 51,750/-. The entire credit of Rs. 1,55,250/-cannot be denied for the reason that admittedly a sum of Rs. 1,03,500/-was paid as duty by the consignor on Spares for Impector.
10. As regards the remaining two items, viz., M.S. Channel and Steel Tubes, in the light of the Tribunal's decision in the case of Bellary Steel & Alloys Ltd. v. CCE, Belgaum , we hold that credit of Rs. 17,693/- is admissible on M.S. Channel and in the light of the Tribunal's decision in the case of Binani Cement Ltd. v. CCE, Jaipur admissible on Steel Tubes. In the result, penalty is set aside and the Appeal No. E/2015/2000 is partly allowed as above.