N. Kumar, J.This appeal is by the revenue challenging the order passed by the Tribunal which held that the steel and cement use in the manufacture of storage tank for which the assessee is entitled to Cenvat Credit on steel and cement purchased for constructing a storage tank. The assessee M/s. S.L.R. Steels Limited is carrying on the business of manufacturing pig iron, G. Slag, Coke and Fuel. It holds Central Excise Registration certificate. A show case notice came to be issued on 30-6-2005 alleging that they have irregularly availed Cenvat credit of Rs. 21,34,251/- on ineligible items like steel, cement etc. and they were asked to a show cause why the said amount should not be recovered from them under Rule 11/14 of the Cenvat Credit Rules, 2002 and 2004 respectively read with Section 11A of the Central Excise Act, 1944. The assessee filed his objections pointing out that the said material was purchased and used as an input in construction of pollution control equipments as well as storage tanks. The Additional Commissioner of Excise accepting the case of the assessee dropped the proceedings. Aggrieved by the said order, the revenue preferred an appeal to the Commissioner of Central Excise. The appellate authority held that cement and steel used for manufacture of the storage tank which is an immovable property is not capable of being bought and sold in the market and hence, are non-excisable goods. No credit of duty paid on any inputs used for such non-excisable goods is admissible in view of the provisions of Rule 6(1) of Cenvat Credit Rules, 2002/2004. Therefore, he allowed the departmental, appeal and confirmed the demand for reversal of wrongly availed capital goods credit, along with interest and penalty. Aggrieved by the said order, the assessee preferred an appeal to the Tribunal. The Tribunal held that the cement and steel used by the assessee for the purpose of construct Iron/Coke, storage tank, gas storage tanks are capital goods. Steel and cement purchased was an input in the manufacture/construction of the said capital goods. Therefore, the inputs having been used for the construction of storage tank and pollution control equipment as held by the Apex Court in the case of Commissioner of Central Excise Coimbatore and Others Vs. Jawahar Mills Ltd. and Others, , the assessee is entitled to Cenvat credit. Therefore, the order of the appellate authority was set aside and the order of the assessing authority was restored. Aggrieved by the said order, the revenue is in appeal.

2. Learned counsel for the revenue assailing the impugned order contends that the assessee is not in the business of manufacture of storage tanks. Storage tank is an immovable property. It is not excisable. In those circumstances, the duty paid on steel and cement which is used for the construction/manufacture of storage tank cannot be availed by the assessee as cenvat credit. Infact, the definition of "input" in particular, Explanation 2 as amended in 2009 supports his contention. Therefore, he submits the order passed by the tribunal is erroneous and the appellate authoritys order has to be restored.

3. Per contra, learned counsel for the assessee contended the material on record clearly establishes that the steel and cement was purchased for construction of storage tank and also used for pollution control equipments which fall within the definition of "capital goods" and therefore, the Tribunal was justified in granting the said relief. No case for interference is made out.

4. In those circumstances, the substantial question which arises for our consideration in this appeal is "Whether the duty paid on steel and cement which was used for the construction of storage tank and pollution control equipment could be availed of by the assessee as cenvat credit

5. In order to answer this question, it is necessary to look into the definition of capital goods as contained in the Cenvat Credit Rules, 2004 which reads as under :

Rule 2(a). Capital goods means :

(A) the following goods, namely : (i) all goods falling under Chapter 82, Chapter 84, Chapter 85, Chapter 90, (Heading 6805, grinding wheels and the like, and parts thereof falling under Heading 6804) of the First Schedule to the Excise Tariff Act;

(ii) Pollution control equipment

(iii) components, spares and accessories of the goods specified at (i) and (ii);

(iv) moulds and dies, jigs and fixtures;

(v) refractories and refractory materials;

(vi) tubes and pipes and fittings thereof; and

(vii) storage tank,

used -

(1) In the factory of the manufacturer of the final products, but does not include any equipment of appliance used in an office; or

(2) For providing output service.

6. A perusal of the aforesaid provision makes it very clear though storage tanks may be immovable property and the pollution control equipment are included within the definition of "capital goods", input as defined in Rule 2(k) makes it clear that "input" includes in goods used in the manufacture of capital goods which are further used in the factory of the manufacturer. Therefore, the input is not necessarily to be used in the manufacture of final product. By virtue of explanation 2 - goods used in the manufacturer of capital goods which are further used in the factory of the manufacture also falls within the definition of input. In 2009, this explanation has been amended to the following effect:

but shall not include cement, angles, channels Centrally Twister Deform bar (C.T.D.) or Thermo Mechanically Treated bar (TMT) and other items used for construction of factory shed, building or laying of foundation or making of structures for support of capital goods.

7. Therefore, the notification of the Legislature is very clear that it is only the "inputs" used in the manufacture or construction of capital goods which is construed as input and cenvat credit is available on the duty paid in purchase of such inputs. If the cement, angles, channels, Centrally Twister Deform bar (C.T.D.) or Thermo Mechanically Treated bar (T.M.T.) and other items are used in the construction of factory shed, building or laying of foundation, the duty paid on such items the assessee would not be entitled to cenvat credit. Similarly, though the assessee is entitled to cenvat credit of cement and steel used in the manufacture of capital goods viz., storage tank, if any structure for support of capital goods is constructed and steel and cement is used for such support, the assessee is not entitled to the benefit of cenvat credit on the duty paid on such cement and steel. Therefore, there is no ambiguity in any of these provisions. When once a storage tank and pollution control equipment constitutes capital goods and any raw material purchased for construction of those goods, the duty paid could be utilized as a cenvat credit by the assessee notwithstanding the fact that the storage tank is an immovable property. Therefore, the appellate authority committed a serious error firstly in holding that the storage tank is an immovable property and secondly, on the ground that it cannot be bought and sold in the market, the criteria which is totally unwarranted under the circumstances. Therefore, the Tribunal was justified in setting-aside the said order and holding that the assessee is entitled to the benefit. In that view of the matter, we do not see any merit in this appeal. The substantial question of law is answered in favour of the assessee and against the revenue. Ordered accordingly.