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TMI Blog2004 (12) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Central Excise, Hyderabad. (i) O-I-A No. 28/2002 (H-II) C.E., dated 31-7-2002 (ii) O-I-A Nos. 29 to 38/2002 (H-II) C.E., dated 31-7-2002 (iii) O-I-A Nos. 4 to 15/2002 (H-II)(D) C.E., dated 31-7-2002 2. The issue relates to the entitlement of Modvat credit on certain inputs and capital goods. The Revenue feels that the order of the Commissioner (Appeals) allowing the credit in respect of these items is wrong. Hence the appeals of the Revenue. 3. The following are the items involved in respect of the appeals. (i) Lubricants used in Mines (ii) Explosives used in Mines (iii) The following capital goods (a) Power Pack (b) Assembled Flexible Connection (c) Dumper Tyres, Tubes and Flaps (d) Lubricants, Greases and Coolants used i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Supreme Court in the case of CCE, Jaipur v. J.K. Udyog Ltd. - 2004 (171) E.L.T. 289 (S.C.) = 2004 (96) ECC 73 (S.C.). Under these circumstances, we hold that Modvat credit on lubricants and explosives used in Mines is not admissible. Hence, the OIA Nos. 28/2002 (H-II) C.E., dated 31-7-2002 and 29 to 38/2002 (H-II) C.E., dated 31-7-2002 are set aside and the departmental appeals E/1140/2002 and E/1128 to 1137/2002 are allowed. 8. Capital Goods : In respect of the appeals against the OIA Nos. 4 to 15/2002 (H-II)(D) C.E., dated 31-7-2002, we have to record the following findings : Power Pack : Relying on Supreme Court's decision in CCE, Coimbatore v. Jawahar Mills Ltd. - 2001 (132) E.L.T. 3 (S.C.), the Commissioner (Appeals) has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nes and factories are entitled for Modvat credit. 9. The Commissioner (Appeals) allowed credit in respect of an invoice which showed less amount of duty than the amount of credit availed. The Commissioner has observed that the payment of duty is a question of fact and in view of the clarification given by M/s. IOC Ltd., she has remanded the matter to the adjudicating authority. The Revenue has come in appeal on the ground that w.e.f. 11-5-2001, the Commissioner (Appeals) has no power to remand. The contention of the Revenue is not correct as the Commissioner still has powers of remand as per the interpretation of the Gujarat High Court decision. Hence the Commissioner (Appeals)'s order of remand is upheld. 10. The appeals E/1116 to 1127/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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