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TMI Blog2007 (8) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent No. l with consequential relief. The respondent No. l is engaged in manufacture of Zinc ingots. During scrutiny of the records of the respondent-assessee No. 1, it was found that the respondent-assesses No. 1 had wrongly taken Cenvat Credit of Rs. 99,050/- during the period between 1-4-2002 to 28-2-2003 on "cement" treating it as input. A show cause notice was issued to the respondent-assessee as to why the said Cenvat Credit should not be disallowed. The respondent-assessee No. l was also asked to show cause as to why interest and penalty should not be recovered from him. The respondent-assessee No. 1 replied the said show cause notice on various grounds. 2. The Assistant Commissioner, Central Excise Division, Udaipur vide his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Counsel Mr. Vineet Mathur appearing on behalf of appellant submitted that so far as cement is concerned, it is a building material and, therefore, Cenvat Credit on the same as inputs cannot be allowed. It is submitted by learned Counsel Mr. Mathur that cement can be used for construction of foundation or as a building material, in terms of Explanation II of Rule 2(g) of the Rules, 2002 considering the fact that the foundation does not qualify as capital goods as per Rule 2(b) of the Cenvat Credit Rules, 2002. 5. Learned Counsel Mr. Dinesh Mehta on the other hand submitted that without use of cement, the mines cannot be operated and, therefore, cement falls under the category of capital goods. Learned Counsel Mr. Mehta further submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in our view does not fall under the category of capital goods as defined under Rule 2(b) of the Cenvat Credit Rules, 2002. The item in question i.e. cement also cannot be considered as inputs as per the definition of Explanation II of Rule 2(g) of the Rules, 2002. In D.B. Central Excise Appeal No 75/2006, we have taken a view that no Cenvat Credit is available so far as the cement is concerned. In our view, the foundation made of cement does not fall under the category of capital goods as per the definition clause and since the cement was used in the construction of foundation, it cannot be said to be eligible capital goods in terms of Rule 2(b) of the Cenvat Credit Rules, 2002 and the cement cannot be said to be inputs in terms of Explanat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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