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TMI Blog2018 (10) TMI 1466X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Present for the Appellant: Mr. B.L. Narasimhan (Adv.) Present for the Respondent: Mr. H.C. Saini, (AR). ORDER PER: RACHNA GUPTA Vide the present order 6 appeals have been disposed off, three were heard on 05.09.2018 for which order detailed below: Present is an Order qua appeal as under against the order no. 198 dated 22.12.2014 passed by the Commissioner as was heard on 05.09.2018. Appeal No. E/52696/2015 Impugned Order-in-Original No. JAI-EXCUS-002-COM-30-14-15-COMMISSIONER dated 22.12.2014 Show Cause Notice Dated 02.08.2013 Period of dispute April 2011 to December 2012 Credit Demand Rs.71,46,418/- Penalty Imposed Rs.35,73,209 Also qua two appeals as below against the order No. 07-08-CRM & 09-10 CRM both dated 02.01.2018 as were heard on 07.09.2018 (Order got reserved for three of these Appeals). Appeal No. E/51381/2018 E/50883/2018 Impugned Order-in-Appeal 09-10 (CRM) ST/JDR/2017-18 dated 02.01.2018 Order-in-Original 06-08/CE/UDR/2016-Addl. Comm dated 07.01.2016 Show Cause Notice Dated 22.07.2014 Dated 24.098.2015 Period of Dispute July 2013 to March 2014 October 2014 to August 2015 Credit Demand Rs.33,96,228/- Rs.49,46,864/- Penalty Dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt the goods as the one in hand were not to be called as input therefore earlier decisions were against the assessee. But post amendment the situation is different. Otherwise also use of cement in filling of pits prior extraction is the statutory mandate being in furtherance of mining Rules. Also there is a circular no. 943/2011 dated 29.04.2011, in view whereof, the cement used in the mines pre-extraction of ore is an input. Finally, it is alleged that the adjudicating authority below has wrongly held the cement to have been used only for maintenance and repair of mines, thereby denying the cenvat credit. The order accordingly is prayed to be set aside appeal is prayed to be allowed. 6. While rebutting these arguments and justifying the orders under challenge ld. DR has impressed upon the decision of Hon'ble High Court of Rajasthan in the case of appellant themselves (though the appeal was filed by the Union of India) wherein it was held that cement used for construction repair or maintenance of mines is not an eligible input to avail the cenvat credit. Para 24 of the order under challenge is also impressed upon. The appeal accordingly is prayed to be dismissed. 7. After hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are proposed to be extracted or reduced, showing the proposed extent of extraction or reduction, the manner in which such extraction or reduction is proposed to be carried out, the thickness and other characteristics of the mineral deposit, the rate and direction of general dip and of the pitch of the vein, the nature of hangwall, and footwall, the stoping width, the depth of the workings, and such other particulars as the Chief Inspector may require. A copy of the application and the plan shall simultaneously be sent to the Regional Inspector. (3-A) The operations of extraction, splitting and reduction of pillars or blocks of mineral shall be commenced, conducted or carried out in such a manner as to prevent, as far as possible, the extension of a collapse in the stoped-out area over-riding the pillars or blocks of minerals that have not been extracted]. 10. The said provisions originates from the Mines Act, 1952. Perusal of record shows that there has been a permission under the aforesaid regulation in favour of the appellant vide which the appellant was permitted to conduct stopping operations of the ore block by making use of impugned cement and the method of extraction sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that: the use of electrical equipments, like lighting, electrical humidifiers, exhaust fan etc. were also taken to be necessary equipment, to effectively carry on the manufacturing process. This was the observation of the Hon'ble Apex court even at the time of scope of definition of input was very very restricted. Further, we observe that even prior to this in the case of Collector of Central Excise Calcutta Vs. East and Paper Industries Ltd. 1989 (43) ELT 201 the Hon'ble Apex Court has held, "Where any particular process is so integrally connected with the ultimate production of goods that, but for that process, manufacture or processing of goods would be commercially inexpedient, articles required in that process, would fall within the expression in the manufacture of goods." 13. This Tribunal also in final order 56900/2017 dated 28.09.2017 has relied upon the decision of Fertilizer Cooperation Ltd. Vs. CCE Ahmadabad 1996 (86) ELT 177(SC) has quoted as follows: "2. The primary contention of the revenue in this case is that the items are not used in or in relation to the manufacture of final product. The first of the items is Hydrochloric Acid (HCL). According to the departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatutorily, not in position to extract the ore, i.e. the final product thus the use of cement was very much in relation to the manufacture which was extraction of ore in the impugned cases. Therefore, we hold that the appellant is entitled to treat the same as input. The clarification to this effect is rather available in circular no. 943/4/2011-CX dated 29.04.2011, the relevant extract thereof is: S. No. Issue Clarification 1. Can credit of capital goods be availed of when used in manufacture of dutiable goods on which benefit under Notification 1/2011-C.E. is availed or in provision of a service whose part of value is exempted on the condition that no credit of inputs and input services is taken? As per Rule 6(4) no credit can be availed on capital goods used exclusively in manufacture of exempted goods or in providing exempted service. Goods in respect of which the benefit of an exemption under Notification No. 1/2011-C.E., dated the 1st March, 2011 is availed are exempted goods [Rule 2(d)]. Taxable services whose part of value is exempted on the condition that no credit of inputs and input services, used for providing such taxable service, shall be taken, are exempted ser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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