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TMI Blog2019 (1) TMI 902X X X X Extracts X X X X X X X X Extracts X X X X ..... her Show Cause Notice dated 24.04.2015 alleging that the Appellant was not entitled to the benefit of credit, as its activity had no relation with the manufacture and clearance of the final product. The demand was raised proposing to recover the inadmissible credit availed, along with interest and penalty. 3. Against the aforesaid SCN‟s, and replies were filed by the Appellant. A common Order-in-Original (hereinafter called as OIO) dated 07.01.2016 was passed by the Ld. Additional Commissioner, who confirmed the demand proposed in the SCN‟s, along with recovery of interest and imposition of penalty. 4. Aggrieved by the order of the Ld. Additional Commissioner, the Appellant filed two separate appeals before Commissioner (Appeals), Jodhpur. The appeals filed by the Appellant were adjudicated upon vide Order-in-Appeal dated 02.01.2018 ('impugned order') as passed by the Ld. Commissioner (Appeals), Jodhpur. Ld. Commissioner (Appeals), has upheld the OIO. Hence the appeal before this Tribunal. 5. I have heard Mr. Anurag Kapur, ld. Advocate for the Appellant and Ms. Tamanna Alam, ld. D.R. for the Department. 6. It is submitted on behalf of appellant that the present issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the cement herein has any relation with the manufacture of final product or not (extraction of ore in present case). 11. For the purpose the Metalliferous Mines Regulations Act, 1961 (as impressed) are looked into Regulation 107(93) reads as follows: 1 (3) No extraction or splitting or reduction of pillars or blocks of minerals shall be commenced, conducted or carried out except with the prior permission in writing of the Chief Inspector and in accordance with such conditions as he may specify therein. An application for such permission shall be accompanied by an up-to-date plan of the area where the pillars or blocks of mineral 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 stopping 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case JK Cottons Spinning and Weaving Mills Co. Ltd. Vs. Sales Tax Officer, Kanpur 1991 (91) ELT 34 has held that : "The expression "in the manufacture of goods" should normally encompass the entire process carried on by the dealer of converting raw materials into finished goods. 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, goods required in that process, would, in our judgment, fall within the expression "in the manufacture of goods." In that case Hon'ble Apex court even went to the extent of holding 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts which emit effluents should be so equipped as to rid the effluents of dangerous properties. The apparatus used for such treatment of effluents in a plant manufacturing a particular end product is part and parcel of the manufacturing process of that end product. The ammonia used in the treatment of effluents from the urea plant of the appellants has, therefore, to be held to be used in the manufacture of urea and the raw naphtha used in the manufacture of such ammonia to be entitled to the said exemption." 17. Following these earlier decisions and keeping in view the above discussion, I am of the opinion that without filling of the ore pits the appellant was statutorily, 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, I 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 as follows: S. No. Issue Clarification 1. Can credit of capital goods be availed of when used in manufacture of dutiable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dutiable goods and exempted goods. While applying Rule 6, the expression "in or in relation" must be read harmoniously with the definition of "inputs". 18. Resultantly, I hold that the adjudicating authority below has committed an error while denying the credit on cement used by appellant in filling pits for making area fit for ore extraction. The authority as relied upon in the case of Hon'ble Rajasthan High Court and as also been impressed upon by the ld. DR are opined to be not applicable to the present case, it being prior to the amendment in the definition of the inputs. The decision of Hon'ble Apex Court in appellants own case Hindustan Zinc Ltd. Vs. Union of India 2015 325 ELT A155 (SC) is also not applicable for the present case because that case was dismissed mainly on the ground that the grounds taken before the Hon'ble Apex Court were not taken before CESTAT, hence, were not allowed to be taken for the first time in appeal, even before the High Court. Here I draw my support from the decision of Hon'ble Supreme Court in the case of Kunhammed vs. State of Kerala 2001 (129) ELT 11 (S.C.) wherein it was held that refusing of special leave to file appeal by a speaking or no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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