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TMI Blog2009 (7) TMI 1123X X X X Extracts X X X X X X X X Extracts X X X X ..... n 'sand reclamation plant, accessories, components thereof' treating them as capital goods during May, 2007 to February, 2008; that a SCN dated 30-5-2008 was issued with proposal to deny the Cenvat credit availed on the 'sand reclamation plant' which is used for producing reclaimed sand which is not excisable commodity and on which, no duty is leviable and hence the appellant has violated the provisions of Rule 2(a) of the Cenvat Credit Rules, 2004 (hereinafter referred to as the rules); that basing on the above, the appellant was directed to show cause as to why the said cenvat credit should not be disallowed/recovered along with interest under Rule 14 of the Rules read with Sections 11A and 11AB respectively of the Central Excise Act, 194 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itate the manufacturer to get his raw materials processed; (iv) that the appellant does not have machinery to manufacture resin coated sand out of reclaimed sand and since the resin coated sand is dutiable, the credit availed on the reclaimed sand which has produced the intermediate product viz, reclaimed sand which is not deniable; (v) that there are catena of decisions where non excisable electricity when used in the machinery to manufacture of excisable goods, the capital goods used to manufacture the said non excisable electricity is held as used in the manufacture of excisable goods and the appellant refers the following decisions (a) Nizam Deccan Sugars Ltd. v. CCE - 2008 (227) E.L.T. 122 (T) = 2008 (85) RLT 307, (b) CCE v. EID Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the excisable commodity and is cleared on payment of duty. Accordingly, his client is eligible to avail Cenvat credit of duty paid on the capital goods used for reclamation of sand. He has also submitted copies of case laws which have been relied upon in the appeal memorandum. 4. I have gone through the case records including record of PH and case laws relied upon by the appellant/Advocate. After waiving pre-deposit, I proceed to take the main appeal for final decision. The issue to be decided in the present appeal is that whether the credit is deniable to the appellant availed on the 'sand reclamation plant, accessories, components which is used in the reclamation of sand. The department has denied the Cenvat credit on the ground that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is erroneous. 4.1 The issue of allowing Cenvat credit of capital goods which were used in the manufacture of non excisable commodity, which is further used in the dutiable products, is no more res integra in view of the following decisions - (a) Nizam Deccan Sugars Ltd. v. CCE, Hyderabad-I [2008 (85) RLT 307 (Cestat - Bang.)] - "Cenvat credit - Rule 6 of Cenvat Credit Rules, 2002 - Captive power plant - Surplus electricity generated is supplied to Electricity Board credit of duty paid on capital goods is admissible as part of electricity is used in production of dutiable sugar." (b) Commissioner of C. Ex. Lucknow v. Seksaria Biswan Sugar Factory Ltd. [2005 (187) E.L.T. 49 (Tri. - Del.)] "Cenvat/Modvat - Capital goods used in exempted int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1944 at a later date not leads to conclusion that prior to date of inclusion, benefit of credit not to be given - Rule 57R (2) ibid - Rule 4 of Cenvat Credit Rules, 2002." (f) Shivaji Works Ltd., v. Commissioner of C. Ex., Aurangabad - 2002 (149) E.L.T. 797 (Tri. - Mumbai) - "Modvat/Cenvat - Modavat on capital goods - Machines used to make sand moulds and sand cores which in turn used for casting articles of metal - Credit denied of the ground that sand moulds and sand cores exempted from payment of duty - Larger Bench of Tribunal in Shri Ramakrishna Steel v. CCE -1996 (82) E.L.T. 575 (Tribunal) held that sand moulds have no independent function or purpose, the only purpose, the only purpose is to add a mould for casting - Making of sand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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