TaxTMI 
TaxTMI 
2007 (8) TMI 340
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....h Section 11A of the Central Excise Act, 1944. The respondent-assessee was also asked to show cause as to why penalty should not be imposed upon it under Rule 13 of the Rules of 2002 read with Section 11AC of the Central Excise Act, 1944. The respondent-assessee was also asked to show cause as to why penalty should not be imposed upon it under Rule 25 of the Central Excise Rules, 2002 as well as to show cause as to why interest should not be recovered from it under Rule 12 of the Rules of 2002 read with Section 11AB of the Central Excise Act, 1944. The said show cause notice was issued on the ground that the respondent-assessee, which is engaged in manufacture of Lead, Zinc and other material appears to have wrongly availed Cenvat credit to the tune of Rs. 37,29,625/- on cement, explosives and oil and lubricants used in the mining area treating them as inputs under Rule 2(g) of the Rules of 2002 during the period between January, 2004 to June, 2004. The details of the same were given in the said show cause notice. As per the said show cause notice, Cenvat credit amount to the tune of Rs. 37,29,625/- has been taken regarding cement, explosives and oil and lubricants, but the same ha....
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....the respondent-assessee. 3. Being aggrieved by the said decision, the respondent-assessee herein referred an appeal before the Commissioner (Appeals), Customs and Central Excise, Jaipur-II. The Appellate Authority by its order dated 5th October, 2005 upheld the order in connection with demand of Rs. 37,29,625/-. However, the Appellate Authority set aside the order of penalty imposed under Section 11AC of the Act, 1944. 4. Being aggrieved by the same, the respondent-assessee filed an appeal before the Customs, Excise and Service Tax Appellate Tribunal, New Delhi. The Tribunal vide its final order dated 30-1-2006 set aside the order passed by the Commissioner (Appeals), Customs and Central Excise, Jaipur-II and allowed the appeal filed by the respondent-assessee. The Tribunal found that the issue in question is covered by the decision of the Hon'ble Supreme Court in the case of Vikram Cement v. CCE reported in 2006 (194) E.L.T. 3 (S.C.) = 2006-TIOL-04-C.E. 5. Being aggrieved by the said decision of the Tribunal, the appellant has filed this Central Excise Appeal under Section 35G (1) of the Central Excise Act, 1944. The appeal was admitted on the following substantial questi....
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....tory in which machinery is installed. Whether a building is a "plant" within the meaning of Rule 13, is a difficult question on which no opinion need be expressed. But to qualify for specification under Section 8(3)(b) goods must be intended for use of the nature mentioned in Rule 13, in the manufacture of goods. Building materials used as raw materials for construction of "plant" cannot be said to be used as plant in the manufacture of goods. The Legislature has contemplated that the goods to qualify under Section 8(3)(b) must be intended for use as raw materials or as plant, or as equipment in the manufacture or processing of goods, and it cannot be said that building materials fall within this description. The High Court was, therefore, right in rejecting the claim of the company in that behalf." 9. Learned Counsel Mr. Mathur has also relied upon the decision of the CEGAT, Northern Bench, New Delhi in the case of Indo Nissan Foods Ltd. v. Commissioner of Central Excise, Delhi reported in 2003 (151) E.L.T. 664 (Tri.-Del.). In the said case, the Tribunal has taken the view that steel supports provided to chimney are not eligible capital goods but they are building materials and....
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....of the respondent-assessee and whether the respondent-assessee is entitled to get benefit of Cenvat credit for the use of cement as input? It is required to be noted that the only point which was argued on behalf of the respondent-assessee before the Tribunal was whether cement used as construction/building material in the mines is eligible as input for the purpose of availment of Cenvat credit under the provisions of the Cenvat Credit Rules, 2002? The specific case of the respondent-assessee before the Tribunal was that the Cenvat credit is available on the use of cement which is used as inputs and in order to substantiate the same reliance was placed on Vikram Cement's case (supra). Before the Tribunal, it was not argued on behalf of the assessee that the cement be treated as capital goods and on that count Cenvat credit is available. The Tribunal on the basis of Vikram Cement's case (supra) has found that the cement which is used as inputs is eligible material for the purpose of getting Cenvat credit. In our view, the real question which is required to be considered is whether the cement which is used as building construction material is eligible for Cenvat credit under Rule 2(g....
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....ued that it can never be treated as capital goods looking to the definition of the capital goods under the Rules as this point was not argued before the Tribunal and the only point which was argued before the Tribunal was whether the Cenvat credit was available on the product i.e. cement which was used outside the factory in the mines and not within the factory premises. The Commissioner (Appeals) has rightly found that the Cenvat credit is not available for the use of cement as inputs. Recently, the Division Bench of this Court in D.B. Central Excise Appeal No. 33/2007, to which one of us (Majmudar, J.) was a party, has taken a view that the material which is used for repairs and maintenance of the plant and machinery, no Cenvat credit is available on such material and the same cannot be treated as inputs eligible for Cenvat credit. In the aforesaid judgment, the Division Bench has held that the welding electrodes used by the assessee for repairs and maintenance of plant and machinery cannot be said to have been used in relation to the manufacture of final product. In our view, the product in question i.e. cement cannot be considered as integrally connected material or product wit....