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TMI Blog2004 (5) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... ing materials and items such as Rebar coils, CTD bars, TOR Steel, Joists and Cement when used as structural support or in foundation of machineries etc. and therefore these citations are squarely applicable to the facts of their case. Thus, we are of the considered opinion that the credit would be admissible on Rebar coils, CTD bars, TOR Steel, joists and cement. We, therefore, allow the appeal filed by the appellant-assessee. We also reject the revenue appeal in Appeal and allow the credit of duty on Loaders under Rule 57Q of the rules ibid. As regards the admissibility of the Modvat credit on Bulldozer we remand the case back to the adjudicating authority and we allow the appeal of the revenue by way of remand in respect of eligibility or otherwise of the item namely, bulldozer. We also allow the appeal of the appellant in respect of Modvat credit on Rebar coils, CTD Bars, TOR Steel, Joists and Cement with consequential relief, if any to the appellant and it is ordered accordingly. - S/Shri S.L. Peeran, Jeet Ram Kait, JJ. REPRESENTED BY : Shri A. Jayachandran, DR, for the Appellant. S/Shri Murugappan, Advocate and V. Ravindran, Consultant, for the Respondent. [Order per : Jeet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any has come in appeal vide Appeal No. E/415/2003 against the Order-in-Appeal No. 139/2003 (SCN) (TRY-II), dated 10-3-2003 by which Modvat credit to the tune of Rs. 51,20,140/- has been denied on rebar coils, cement, joists and TOR steel as these items were considered as used for civil construction. 3. Appearing on behalf of the revenue, ld. DR. Shri A. Jayachandran reiterated the ground in the revenue appeals and brought to our notice Paras 2 and 4 of the impugned Order-in-Appeal Nos. 25 and 26/1998 (TRY), dated 17-3-98. It was contended by the DR that Bulldozer and Loader are entitled to the credit of duty if and only if they are used within the factory but in the present case the facts clearly confirmed that these two items are used only in mines. It was submitted that in view of the facts on record, the Bulldozer and Loader do not satisfy the explanation of the definition of capital goods under Rule 57Q and therefore not eligible for credit of duty. The ld. DR. cited the Apex Court judgment in the case of Jaypee Rewa Cements v. CCE - 2001 (133) E.L.T. 3 (S.C.) in support of his submissions. Ld. DR therefore prayed that the impugned order may be set aside so far as it related to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be denied. As regard Bulldozer, the same was used only in mines. However the impugned order does not specifically confirm the fact as to whether or not the factory included the mines as per the Registration granted by Department to them and as per the ground plan approved by the department. They further submitted that it is well settled position in law that the capital goods to be eligible for credit must be used within the factory premises and this legal position has been confirmed by the Apex Court judgment rendered in the case of Jaypee Rewa Cements v. CCE, 2001 (133) E.L.T. 3 (S.C.) which was relied by the revenue. He further submitted that in the case of Hindustan Zinc Ltd. v. CCE - 2002 (147) E.L.T. 1185 a similar issue was considered and matter was remanded for decision after due verification. They further submitted that the matter needs to be remanded for verification of the fact as to whether the appellant s factory includes mines also as per the approved ground plan and depending upon the facts the eligibility to the credit of duty on the bulldozer will have to be considered based on the above decisions. As far as the Loader is concerned it is a material handling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strial business. They also relied on the judgment rendered by the Apex Court in the case of CCE v. Jawahar Mills Ltd. - 2001 (132) E.L.T. 3 (S.C.) wherein it was held that the language used in Explanation (1) of Rule 57Q is very liberal. They also pressed into service the judgment rendered by the Tribunal in the case of New J.K. Cement Works v. CC - 1999 (113) E.L.T. 428 wherein it was held that supporting structures of steel, power pack voltage relay and choke cables used in the manufacture of clinkers and cement are capital goods entitled for Modvat credit under Rule 57Q. They also relied on the judgment rendered by the Tribunal in the case of Global Sugar Ltd. v. CCE - 2000 (119) E.L.T. 611 wherein it was held that Modvat credit on capital goods is available for plates, white lead, shapes and sections, M.S. Angles, M.S. Channels, steel structure for boiling house, electric wires and cables and main lighting distribution board under Rule 57Q of the CE Rules. They also pressed into service the judgment rendered by the this Bench in the case of BHEL v. CCE - 2001 (47) RLT 1057 wherein it was held that Modvat credit on capital goods that is to say MS rods and angles used as supporti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning of Rule 57Q and argued that the building materials used as raw materials for construction of the cement plant cannot be considered as used in the production of final products so as to qualify for the credit under Rule 57Q of the CE Rules. 6. We have considered the rival submissions and the judgments pressed into service and are of the considered opinion that rebar coils, CTD bars, TOR steel, joists and cement have been used for construction of the plant comprising of concrete foundations, concrete silos for storing raw materials, clinker and cement, Pre-heater Tower Structure, Load Centres, etc. The appellant-assessee have emphasized and confirmed that they had not availed of the credit of duty in respect of that quantity of Rebar Coils, CTD Bars, TOR Steel, Joists and Cement which were used for civil construction of their office premises, godown, etc. It is now well settled legal position and the Apex Court in the case of CCE v. Jawahar Mills Ltd. - 2001 (132) E.L.T. 3 (S.C.) has held that the language used in Explanation (1) of Rule 57Q is very liberal and the capital goods can be machines, machinery, plant, equipments, apparatus, tools or appliances, the components, spare p ..... 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