R.K.ABICHANDANI, J. - (1.)THIS group of appeals arises from a common order of the Commissioner (Appeals). Tiruchirapalli dated 23.11.1998 partially allowing 3 appeals of the assessee, which were filed against 3 Orders -in -Original passed by the same Commissioner of Central Excise disallowing Modvat credit of Rs. 17,36,549.40 by O -I -O No. 74/97 dated 26.12.1997: Rs. 1,98,30,947.12 by O -I -O No. 71/97 dated 26.12.1997; and Rs. 1,94,69,054.71 by O -I -O No. 1/98 dated 02.01.1998.
(2.)THE Excise Appeal Nos. 377, 378 and 379 of 1999 have been filed by the assessee feeling aggrieved by the impugned order to the extent that it goes against the assessee. By these appeals, the assessee has challenged the finding that the item nos. 1 to 8 and 20 mentioned in the 1st paragraph of the impugned order, which were used for RCC foundation for embedding machinery, were used in civil construction work and, therefore, they did not come within the meaning of 'capital goods', under Rule 57Q of the Central Excise Rules, 1944. The assessee also challenges the finding that 1,025 Dumpers and Static road rollers with accessories were being used in the mine and not within the factory of production, for the manufacture of final product, hence credit of duty was not admissible under Rule 57Q and that diesel engine driven welding set was used for maintenance purpose and hence was not capital goods for the purpose of Rule 57Q.
(3.)THE appellant -assessee had proposed to start their new project at Alathiyur for the manufacture of Cement falling under Chapter 25 of the Central Excise Tariff Act, 1985 and declarations were filed under Rule 57T of the Rules with an intention to avail Modvat credit on capital goods. The show -cause notice dated 11.04.1996 came to be issued for rejection of declaration and disallowance of Modvat credit in respect of certain goods on the ground that they were ineligible for claiming Modvat credit, as they did not qualify for it. Since Modvat credit was wrongly availed, show -cause notice was issued as to why the declarations should not be rejected under Rule 57O of the Rules read with 57T thereof and the amount of credit taken should not be disallowed.
Following 20 items were involved in the said show -cause notice: Sl.No. Name of the goods Sub -Heading 01 Angles 7216.10 02 Joists 7216.10 03 Thermo Mech Treated bars 7216.10/7214.90 04 Plain plates 7208.10/7208.11 05 Tor steel 7214.90 06 Reba coils 7214.90/7213.90 07 Channel 7216.10 08 Cement 2502.29 09 Mobile crane 8426.00 10 Static Road Roller with 8429.00 accessories 11 Micro Genset 5 KVA/10 KVA 8502.00 12 Cables 8544.00 13 Surface minor 9801.00 of Cus. Tariff 14 Digital weight indicator jn. Box 8423.10 15 Switch boards and panels 8537.00 16 Preheater cyclones, ducts, calciner and kiln feed hood 8474.90 17 Industrial valves 8481.90 18 Hindustan 1025 dumpers 8705.00 19 Diesel engine driven welding set 8515.00 20 Steel wire 7217.90