Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Central Excise Appeal No. 06 of 2006 Commissioner of Custom and Central Excise, Meerut – II. ...…………. Appellant Versus M/s India Glycols Ltd. Kashipur, District Udham Singh Nagar. ...…………. Respondent Mr. Arvind Vashisth, Standing Counsel for the appellant-revenue. Mr. Rajesh Kumar and Mr. S.K. Posti, Advocates for the respondent. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Hon. Prafulla C. Pant, J. (oral) This appeal, preferred under Section 35-G of the Central Excise Act, 1944, is directed against the order dated 29th of May 2006, passed by the Customs, Excise and Service Tax Appellate Tribunal, Principal Bench, New Delhi (hereinafter referred as CESTAT) in Excise Appeal No. 3504 & 4096 of 2004 –NB(S), whereby the appeal of the assessee (present respondent) is allowed (except for laboratory equipment), and one that of the Revenue, is dismissed. 2 2) The question of law involved in this appeal is as under: “Whether, Modvat credit can be allowed on the items, namely ‘M.S. Angle’, ‘Cement’ and ‘Bitumen’, which are used as construction material, under Rule 57Q of the Central Excise Rules, 1944? 3) Heard learned counsel for the parties. 4) Brief facts of the case are that respondent M/s India Glycols Ltd., Kashipur (hereinafter referred as Unit) is engaged in manufacture of Monoethylene Glycol, Diethylene Glycol, Triethylene Glycol, Polyethylene Glycol and heavy Glycol, all falling under Chapter Heading No. 2905.90 of Central Excise Tariff Act, 1985. The Unit claimed MODVAT credit under Rule 57A and 57Q of the Central Excise Rules, 1944, i.e. adjustment of duty paid (by seller Unit) on goods purchased and used in manufacturing its item by another Unit). According to the appellant- Revenue, the Unit wrongly availed Modvat credit on Inert and Spring, Ceramics Fibres, Enklo-N.68, Lab Equipment, Cement, Bitumen, M.S. Angle and other items as capital goods, as the same are not covered under the definition of capital goods. Four show cause notices were issued to the Unit by the Superintendent (Preventive) Central Excise Division, Rampur, and Superintendent, Central Excise, Range, Kashipur, as to why Modvat credit should not be disallowed / recovered under Rule 57-I and 57-U of the Central Excise Rules, 1944. On receiving reply, the adjudicating authority allowed Modvat credit vide order 3 dated 29.12.1996, amounting to Rs. 3,05,317.03 on items, namely spare for Reactors Filter Cartridge, Article of Iron Steel, Valves Spares, Spares of PD Pump, Bag Filter & Nut and Bolts. However, Modvat credit amounting to Rs. 4,58,687.01 was disallowed under Rule 57-I of the aforesaid Rules. Also, similar credit of Rs. 4,18,768.96 was disallowed under Rule 57-U of the rules read with Section 11A of Central Excise Act, 1944. Aggrieved by said order, the Unit preferred an appeal before the Commissioner (Appeals), Customs and Central Excise, Ghaziabad. Said authority vide order dated 06.03.1997, disallowed Modvat credit on Inert and Spring, Ceramics Fibres, Enklo-N.68, Lab Equipment, Cement, Bitumen, M.S. Angle and other items on the ground that these items do not form part of the capital goods or part of the plant and machinery. Thereafter, the assessee filed further appeal before the CESTAT, New Delhi, which set aside order dated 06.03.1997, vide order dated 16.12.1997, and remanded back the matter to the Commissioner (Appeals) for de novo decision. The Commissioner (Appeals), thereafter, decided the matter vide order dated 13.04.2004, allowing the Modvat credit to the Unit on Cement, Bitumen and M.S. Angle, Indicator and flow meter under Rule 57Q, and upheld the remaining part of the order of the Assistant Commissioner of Central Excise, Division Rampur (now Haldwani). On this, the Revenue as well as the Unit preferred appeals before the CESTAT against order dated 13.04.2004, passed by Commissioner (Appeals), which was decided vide impugned order dated 29.05.2006, rejecting 4 the appeal of the Revenue, and allowing partially the appeal of the Unit. Hence, this appeal by the Revenue. 5) Mr. Arvind Vashistha, learned counsel for the appellant–Revenue argued that the CESTAT has erred in law by affirming the order of the Commissioner (Appeals), Customs and Central Excise, allowing Modvat credit on the items M.S. Angle, Cement and Bitumen. In this connection, he contended that these items do not form part of the ‘capital goods’. 6) It is pertinent to mention here that the present matter pertains to the year 1994. Definition of ‘Capital Goods’ as existed before 16th of March 1995, in Explanation to Rule 57Q, read as under: “Explanation – For the purposes of this section – (1) “Capital goods” means – (a) machines, machinery, plant, equipment, apparatus, tools or appliances used for producing or processing of any goods or for bringing about any change in any substance for the manufacture of final products; (b) components, spare parts and accessories of the aforesaid machines, machinery, plant, equipment, apparatus, tools or appliances used for aforesaid purpose; and (c) moulds and dies, generating sets and weighbridges used in the factory of the manufacturer.” 5 The aforesaid definition was amended vide Notification No. 11 / 1995 Central Excise (NT) dated 16th March 1995, whereby clause (d) and Clause (e) were added to the Explanation. Clause (d) and Clause (e) added in Explanation to Rule 57Q, read as under: “(d) Following goods falling within the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) and used in the factory of the manufacturer. (i) All goods falling under heading Nos. 84.02, 84.05, 84.06, 84.11, 84.12, 84.16, 84.17, 84.19, 84.21, 84.23, 84.25 to 84.28, 84.80, 85.05, 85.35, 90.11, 90.12, 90.13, 90.16, 90.17 and 90.24 to 90.31; (ii) Auxiliary plants falling under heading No. 84.04 for use with boilers of heading No. 84.02; (iii) I.C. engines (other than engines of motor vehicle) falling under heading No. 84.07 or 84.08; (iv) Compressors (other than of a kind used for refrigerating and air-conditioning applications) falling under heading No. 84.14; (v) Electric generating sets (of output exceeding 75 KVA) falling under heading No. 85.02; (vi) Transformers (of power handling capacity exceeding 75 KVA) falling under heading No. 85.04; 6 (vii) Goods (other than for medical use) of heading No. 90.22; (viii) Goods (other than of a kind used for refrigerating and air-conditioning applications) falling under heading Nos. 84.81 and 90.32; (ix) Components, spares and accessories of the goods specified against item (i) to (viii) above; (x) Refractories falling within Chapter 69; (e) Goods specified in the Table in the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 68/89- Customs, dated the 1st March, 1989, and used in the factory of manufacturer.” 7) Mr. Rajesh Kumar, learned counsel for the respondent / assessee drew attention of this Court to the case of the Commissioner of Central Excise, Coimbatore Vs. Jawahar Mills Ltd.; 2001 (132) E.L.T. 3 (S.C.), and argued that the language used in the Explanation (1) to Rule 57Q was very liberal and Clause (d) and Clause (e) added w.e.f. 16.03.1995, were explanatory one and do not dilute the items mentioned in Clause (a) of Explanatin (1) and only requirement in respect of items for which Modvat credit is claimed must be used in the factory for the production of the final product. We agree with the argument advanced on behalf of the respondent only to the extent that the requirement for claiming Modvat credit in respect of an item under Rule 57Q read with Section 3 of 7 Customs and Tariff Act, 1985, in view of the language used in the Explanation (1) to said Rule, is that such items must have been used for the manufacture of the final product. We also agree that the meaning of expressions ‘in the manufacture’ and ‘for the manufacture’ are different. The expression ‘in the manufacture’ while refers to the items used in manufacturing of the final product, the expression ‘for the manufacture’ covers the other items which may not be necessarily part of the new manufactured product, but used in the machinery or plant, for the purposes of manufacturing the final product. But, in the present case, the item manufactured by the Unit are Monoethylene Glycol, Diethylene Glycol, Triethylene Glycol, Polyethylene Glycol and heavy Glycol. It is nobody’s case that Cement and Bitumen, which are the material of building constructions, are used for manufacturing the above products. What learned counsel for the respondent argued is that, since, the Cement and Bitumen are used for fixing the plant and machines, as such, the Unit is entitled to the Modvat credit on these items also. We do not find any finding of any of the authorities below that the Cement and Bitumen with regard to which the Unit is claiming Modvat credit were actually used for fixing the plant and machinery, in which the aforesaid items are manufactured. In the factory premises Cement and Bitumen may be used not only for the purposes of fixing the plant, but also for the residences of the staff quarters or for constructing the boundary wall of the premises. There is no finding of the authorities below that the Cement and Bitumen with regard to which Modvat credit is claimed were used in fixing the 8 plant or machinery for the purposes of manufacturing the aforesaid items. Therefore, we find that the CESTAT has erred in law in holding that the Unit is entitled to Modvat credit on the items Cement and Bitumen under the Head of ‘capital goods’. However, as far as M.S. Angles are concerned, the adjudicating authority as well as the lower appellate authority has observed that M.S. Angle were used by the Unit in joining the connecting M.S. pipes in manufacturing the goods produced by the Unit. As such, in respect of ‘M.S. Angle’, the CESTAT has rightly upheld Modvat credit, allowed to the Unit. 8) For the reasons as discussed above, we hold that the Modvat credit claimed by the Unit in respect of Cement and Bitumen is liable to be disallowed / recovered, and to that extent the order of the CESTAT, is set aside. However, Modvat credit allowed in respect of M.S. Angle needs no interference, as the same on the present facts and circumstances of the case, is covered within the erstwhile definition of ‘capital goods’ as it existed for the relevant period of 1994, under Rule 57Q of the Central Excise Rules, 1944. The question of law stands answered. The appeal, accordingly, stands allowed partly. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt. August 12, 2008. H. Negi