ORDER
S.S. Kang, Member (J)
1. Revenue filed this appeal against the order in appeal whereby the penalty on Modvat credit was allowed on capital goods.
2. Heard both sides.
3. The Commissioner (Appeals) allowed the benefit of Modvat credit in respect of the capital goods purchase through job worker/contractor.
4. The contention of the Revenue is that the appellants are not entitled for the benefit of credit in respect of these items as these are indirect purchases and no permission was obtained by the respondents from the Revenue authorities.
5. The Commissioner (Appeals) in order in appeal gave a specific that in the invoices the appellants were also shows as consignee. This finding is not challenged by the Revenue as the respondents were also shown as consignee in the invoices. Therefore, the appellants are entitled for the credit on the strength of such invoices. The appeal filed by the Revenue in this regard is dismissed.
6. The other items on which the benefit of Modvat credit was allowed are:
1. Structural materials
2. Air Conditioners
3. Paints (White lead)
4. UPS
5. Ion Exchanger.
7. The contention of the Revenue is that the goods are not capital goods as the steel structure cannot be construed to be component part of machine or machinery. The paints are not capital goods. The White lead is a chemical, therefore, is not covered under the definition of capital goods. In respect of Air Conditioners, the contention of the Revenue is that these are used in the office. In respect of the UPS, the Revenue’s contention is that they are used to supply the power to computer, therefore, are not entitled for the Modvat credit.
8. The respondents relied upon the decision of the Hon’ble Supreme Court in the case of Commissioner of Central Excise, Coimbatore v. Jawahar Mills Ltd. reported in 2001 (132) E.L.T. 3 (S.C.) and submits that the goods are used with machine and machinery, therefore, are entitled for the benefit of Modvat credit.
9. We find that the Hon’ble Supreme Court after taking into consideration of the definition on the capital goods held that if the goods in question are used with machine and machinery then the credit is available and the goods are used, otherwise, the benefit of Modvat credit is not available.
10. We find that Ion Exchanger is used in de-mineralisation plant for de-mineralization of boiler feed water. The Ion Exchanger is the part of plant, therefore, is entitled for the benefit of Modvat credit. The appeal of the Revenue in this respect is dismissed.
11. In respect of the benefit of Modvat credit as capital goods in respect of steel structure of Air Conditioner, UPS and paints, there is no finding that these are used with machine or machinery. Therefore, we find that the matter requires re-consideration by the adjudicating authority in the light of the decision of the Hon’ble Supreme Court in the case of Commissioner of Central Excise, Coimbatore v. Jawahar Mills Ltd. (supra). Therefore, in respect of these items, the matter is remanded to the adjudicating authority for de novo adjudication. The adjudicating authority will decide after affording an opportunity of hearing to the respondents. The appeal is disposed of as indicated above.