9911796707
TMI Blog2007 (8) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 order dated 30th August, 2003 confirmed the demand of Rs. 99,050/- and also ordered for recovery of interest under Section 11AB of the Act, 1944. A penalty of Rs. 25,000/- was also imposed on the respondent-assessee under Rule 13 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that in the instant case, cement was used in the foundation of the casting machine in the Zinc Electrolysis plant as well as in the foundation of the Zinc purification Pachuka and in the foundation of other machineries installed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 Explanation II of Rule 2(g) of the Rules, 2002. 7. Considering the aforesaid aspect of the matter, in our view, the Tribunal has erred in allowing the appeal filed by the respondent-assessee. In our view, the Tribunal has committed substant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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