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TMI Blog2017 (12) TMI 763X X X X Extracts X X X X X X X X Extracts X X X X ..... credit on capital goods / spares 01/2010 to 08/2012 Rs.29,56,964/- E/21545/2016 18/09/2013 -do- 09/2012 to 06/2013 Rs.2,19,132/- E 21544/2016 10/10/2013 Wrong availment of credit of service tax 01/2010 to 08/2012 Rs.3,73,152/- E/21546/2016 18/09/2013 -do- 09/2012 to 06/2013 Rs.1,67,967/- 2.1. Briefly the facts of the present case are that the appellants are manufacturers of cement, concrete blocks falling under chapter 68 of the CETA, 1985 and are availing the benefit of CENVAT credit of duty paid on inputs, capital goods and input services. During the course of verification of records of the appellant, it was noticed that they had availed CENVAT credit of duty paid on capital goods / spares in respect of capital goods ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -excisable goods. Accordingly two show-cause notices dt. 17/18.09.2013 and 10/03/2013 were issued to the appellants demanding the wrongly availed CENVAT credit besides proposing recovery of interest and penalty under appropriate provisions of Central Excise Act, 1944 and CENVAT Credit Rules, 2004. 2.3. After considering the submissions of the appellant, the original authority confirmed the demand under rules 14 of CCR read with proviso to Section 11B of the CEA along with appropriate interest and also imposed equal penalty under Rule 15 of CCR read with Section 11AC of the CEA. Aggrieved by the said order, appellant filed four appeals before the Commissioner(Appeals) who vide the impugned order rejected the appeals filed against Order-in-o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the role played by the equipment in the initial setting up or substantial expansion of existing unit of an industrial plant. Having manufacturing unit away from the manufacturing unit/crusher is a technological necessity. For this submission, he relied upon the decision of this Tribunal in the case of National Aluminium Co. Ltd. Vs. CCE, Madras [1997(94) ELT 409 (Tri. Del.LB)) and J.K. Udaipur Udyog Ltd. Vs. CCE, Jaipur [2002(147) ELT 996 (Tri. Del.)] and Vikram Cement Vs. CCE, Indore [2006(194) ELT 3 (SC)]. 4.2. He also referred to CBEC Circular dt. 25/09/2002 and submitted that the credit is not to be denied on capital goods used in the manufacture of exempted intermediate goods which are used captively in the manufacture of finished goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in the case of Vikram Cement Vs. CCE, Indor[2006(197) ELT 145 (SC)] has held as under:- 5. As regards the Modvat/Cenvat credit on capital goods, if the mines are captive mines so that they constitute one integrated unit together with the concerned cement factory, Modvat/Cenvat credit on capital goods will be available to the assessee. On the other hand, if the mines are not captive mines but they supply to various other cement companies of different assessees, Modvat/Cenvat credit on capital goods used in such mines will not be available to the concerned assessee under the appropriate Modvat/Cenvat Rules. The matters are remanded to the respective original authorities for decision only on the above issue. 5.2. He further submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old that with regard to input service tax credit proportionate to the credit in regard to trading, I remand the case back to the original authority to determine proportionate cenvat credit relating to trading which is ineligible and with regard to the remaining quantity which is consumed as captive consumption, the appellants are entitled to input service tax credit. 7. As far as imposition of penalty under Rule 15 of CCR read with Section 11AC of CEA is concerned, I find that the appellants have informed the audit party that they have informed the Department vide their letter dt. 25/05/2010 and 04/06/2010 that they are owning the crusher unit which is functioning away from the manufacturing unit. I also find that availing and utilising ce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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