2010 (10) TMI 868 - AT - Central Excise

Tribunal denies CENVAT credit for capital goods in fly ash extraction plant

The Tribunal upheld the denial of CENVAT credit on capital goods used in a fly ash extraction plant for a cement manufacturer. The decision was based on ... CENVAT credit on the capital goods used in the fly ash extraction denied - Held that:- As neither the extraction of fly ash takes place in the captive plant nor the fly ash generated is exclusively used in the factory of the appellant. This itself is sufficient to reject the claim of the appellant. The decision of the Ahmedabad Electricity Co. Ltd. case (2003 (10) TMI 47 - SUPREME COURT OF INDIA) also lends support to the view taken by the Commissioner (Appeals). Decision of Birla Corporation Ltd. case (2007 (3) TMI 10 - SUPREME COURT OF INDIA) as relied upon by assessee was in relation to a question as to whether the duty paid on the spares of the ropeway used for the purpose of transporting crushed limestone from mines located at 4.2 kms. away from the factory could have been availed as Modvat credit. The said matter did not involve any other issue particularly regarding the captive use and necessity of subsidiary plant being a captive plant. Being so, the decision is of no help in the matter in hand. Against assessee. Issues:Challenge to denial of CENVAT credit on capital goods used in fly ash extraction plant.Analysis:1. The appellant, a cement manufacturer, challenged the Excise Officers' decision rejecting their claim for CENVAT credit on capital goods used in the fly ash extraction plant.2. Lower authorities rejected the claim stating that the fly ash extraction activity was not carried out within captive mines and the fly ash was not exclusively used in the appellant's factory.3. The appellant relied on the decision in Birla Corporation Ltd. v. CCE, arguing that the mere distance between the fly ash extraction unit and the factory should not deny them the credit.4. The Joint CDR supported the lower authorities, citing decisions in Vikram Cements Ltd. v. CCE, Indore, and Ahmedabad Electricity Co. Ltd. case.5. The Commissioner (Appeals) confirmed the denial of credit, emphasizing that the fly ash extraction did not occur in a captive plant, and the extracted fly ash was not exclusively used in the factory.6. The MOU between the appellant and VTPS revealed that the fly ash extraction system was not under the appellant's control, and surplus fly ash could be used by others, indicating non-exclusive use.7. The Commissioner (Appeals) distinguished the case from Vikram Cement, highlighting the lack of integration between the fly ash extraction system and the cement factory.8. The Apex Court's decision in Vikram Cement case supported the denial of credit if the extraction did not occur in a captive plant exclusively used by the assessee.9. The Commissioner (Appeals) concluded that the appellant did not meet the criteria for CENVAT credit based on the findings and analysis, supported by the decision in Ahmedabad Electricity Co. Ltd. case.10. The decision in Birla Corporation Ltd. case was deemed irrelevant to the current matter, as it did not involve issues related to captive use or subsidiary plant necessity.11. Consequently, the Tribunal found no grounds to interfere with the lower authorities' decision and dismissed the appeal based on the lack of exclusive use of fly ash in the factory and non-captive nature of the extraction plant.