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TMI Blog2019 (9) TMI 1194X X X X Extracts X X X X X X X X Extracts X X X X ..... handling plant is situated 60 kms. away from the factory premises of the Appellant, it cannot be a ground to deny the Cenvat Credit Cenvat credit on capital goods used in the Fly Ash Handling Plant. Captive does not mean that it has to be within the factory premises only. In VIKRAM CEMENT VERSUS CCE, INDORE [ 2006 (2) TMI 1 - SUPREME COURT] , the Hon ble Supreme Court has specifically held that explosives in the mines are used for manufacture of final products and hence Modvat credit cannot be denied even though not used in the factory. The Hon ble Supreme Court has made it clear that if the capital goods are used by the assessee for their own use, be it inside the factory premises or outside the factory premises, they are entitled for Modv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the capital goods in question was not installed or utilized in the Appellant's cement factory. According to the department since these capital goods/ inputs were used/installed in the premises of Chandrapur Super Thermal Power Station (CTSPS), which is 60 kms away from the Appellant's factory, therefore the Appellants are not entitle for availing the Cenvat credit in respect of inputs/capital goods used/purchased by the Appellants for setting up the Fly Ash Handling Plant at the premises of CTSPS. The period involved is January, 2007 to June, 2007 and July, 2007 to March, 2008. For the period January, 2007 to June, 2007, two show cause notices dated 28.1.2008 and 25.4.2008 for the amount 47,53,412/- were issued, whereas for the perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way from the factory premises of the appellants. In other words Fly Ash Plant is essentially integrated unit of the appellants manufacturing factory as it ensures timely supply of the input i.e. fly ash to the appellants which is essential raw material for the manufacturing activity of the appellants and therefore Cenvat Credit in respect of capital goods used for settling the Fly Ash Handling Plant is admissible to the appellants. In support of his submissions, the learned counsel relied upon the following decisions:- (i) Vikram Cement vs. CCE; 2006(194) ELT 3 (SC) (ii) Vikram Cement vs. CCE; 2006(197) ELT 145 (SC) (iii) Birla Corporation Ltd. vs. CCE; 2005 (186) ELT 266(SC) (iv) Birla Corporation Ltd. vs. CCE; 2007 (212) ELT 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 36. The issue before to be decided is whether the Cenvat Credit availed by the appellant as Capital goods for setting up of Fly Ash Handling Plant at the site of CSTPS, which is 60 Kms outside the factory premises of the appellant. 37. The issue is no longer res-integra in view of the Hon'ble Supreme Court judgement in the case of Vikram Cement Vs. CCE reported in 2006(197)ELT 145 (SC), wherein it has been clearly held that in respect of Capital goods, it observed that "As regards the Modavat/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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Fly Ash Plant which is meant exclusively for the appellant, will be eligible for availing the Cenvat credit. 40. In view of the I have no hesitation to set-aside the impugned order and allow the appeal of the appellant. I order accordingly." 6. Only because the flay ash handling plant is situated 60 kms. away from the factory premises of the Appellant, it cannot be a ground to deny the Cenvat Credit Cenvat credit on capital goods used in the Fly Ash Handling Plant. 'Captive' does not mean that it has to be within the factory premises only. In Vikram Cements v. CCE, 2006 (194) ELT 3 (S.C.) (supra), the Hon'ble Supreme Court has specifically held that explosives in the mines are used for manufacture of final products and hence Mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Commissioner (supra) in Appellants' own case is not binding, but I completely agree with the findings recorded in the said Order-in- Appeal. In the said order the learned commissioner has recorded a clear finding that the Fly Ash produced in the Plant in question is exclusively used by the appellant's factory and is not at all supplied to any other customers. Therefore, there is no iota of doubt about the exclusive use of the fly ash in Appellant's factory. In view of the above, the finding which has been recorded by the Commissioner in paragraph 10.3 of the impugned order, is erroneous and is without any basis. So far as the distance from the factory premises is concerned, the same hardly matters in view of the decisions of the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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