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TMI Blog2015 (11) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... used in such captive mine, then the assessee would be entitled to the MODVAT credit. - while making these comments, the CESTAT has erred inasmuch as even as in the show cause notice issued by the respondent-Department it was admitted that the goods are not in the nature of capital goods and these were used for construction of concrete structure and foundation on which the various heavy machineries in a cement plant was to be erected. - goods in question were captively used for the construction of the plant and had nothing to do with the mining which is accepted by the Department itself in the show cause notice. - Matter remanded back - Decided in favour of assessee. - CIVIL APPEAL NO. 3115 OF 2007, CIVIL APPEAL NO. 3114 OF 2007 & CIVIL APP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AT credit on 17:07:25 IST In order to get a clear finding on the issue, all the matters are remanded to the respective original authorities for decision only on the above issue. There is no dispute and cannot be any dispute about the aforesaid legal position. In fact, this was the principle laid down by this Court earlier in the case of 'Vikram Cement v. Commissioner of Central Excise, Indore' [2006 (194) ELT 3(SC)]. The only question therefore, which has to be considered in the present appeal is as to under which category the case of the appellant falls. For this purpose, the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as 'CESTAT') has, by the impugned judgment, remitted the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es which constitute one integrated unit together with the cement factory of the assessee. Though the principle of law has rightly come from the judgment of this Court in Vikram Cement's case, the CESTAT has went further to remark that in the present case, the Commissioner (Appeals) has not given any findings on the stand taken by the assessee that the mining area was a part of the factory premises as per the ground plan and the registration certificate. It is further discerned that if the mines from which the material is excavated and is used for manufacturing the final product by the assessee is captive mine and a part of the factory premises and the capital goods are used in such captive mine, then the assessee would be entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X
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