TMI Blog2013 (11) TMI 944X X X X Extracts X X X X X X X X Extracts X X X X ..... AN] - As such, the component parts of the Ventra locomotives would have to be treated as inputs eligible for cenvat credit - Thus the order upholding the denial of cenvat credit in respect of the components of ventra locomotives is not sustainable set aside – Decided in favour of Assessee. Eligibility for cenvat credit – Goods Input or not - Denial of cenvat credit on cement and DA gas – Inputs to be used within the factory premises – Rule 2(g) of the cenvat credit rules, 2004 - Held that:- Following Union of India Vs. Hindustan Zinc Ltd. [2007 (8) TMI 340 - HIGH COURT OF RAJASTHAN] - The order denying the cenvat credit on DA gas is not sustainable and the same has to be set aside - DA gas was used for repair & maintenance of plant & ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals), the Commissioner (Appeals) by two separate orders upheld the Asstt. Commissioner s orders against which these two appeals have been filed. 3. Heard both the sides. 4. Ms. Charanya Kumaran, Advocate, ld. Counsel for the appellant, pleaded that sofar as DA gas is concerned, same being used for repair and maintenance of machinery/machinery parts has to be treated as input used in the manufacture of final product and would be eligible for cenvat credit, that in this regard, she relied upon the judgement of Hon ble Chattisgarh High Court in the Ambuja Cement Ltd. Vs. CCE, reported in 2010 (256) ELT 690 and the judgement of Hon le Rajasthan High Court in the case of Hindustan Zinc Ltd. reported in 2008 (228) ELT 517 (Raj), wherein it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used in the underground mines to prevent the same from caving in is not eligible for cenvat credit. She also pleaded that SLP to Supreme Court filed against this judgement of the Rajasthan High Court has been dismissed. As regards the component parts of Ventra Locomotives, she cited the judgement of the Tribunal (order No.1450/2008-SM dated 6.11.2008) wherein the Tribunal has held that since ventra locomotive is not covered by definition of capital goods, its spare parts cannot be treated as the components of capital goods and hence, would not be eligible for cenvat credit. She also pleaded that the component parts cannot be treated as inputs. As regards, DA Gas she cited the judgement of the Tribunal in the case of Steel Authority of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng activity in the plant and hence are eligible for cenvat credit. In this regard, para-20 of the judgement is reproduced below:- 20.?So far as the claim to Railway Track material is concerned, it is common ground that the same has been used for transporting of coal and product of cement. Apparently, though the coal is not end product of the appellant but used as essential adjunct of plant for feeding it with fuel, the essential element of production process for manufacture of cement. Without supply of fuel the plant does not function. Therefore, the Railway Track used for one of the essential activity of running the plant itself cannot be kept out of consideration for availing Modvat credit though which is not being used directly for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Apex Court. Therefore, the Commissioner (Appeals) s order in respect of cement is upheld. 9. As regards the DA gas, I find that the same was used for repair maintenance of plant machinery. The issue as to whether an item used for repair and maintenance of the plant machinery is eligible for cenvat credit stands decided in favour of the appellant by the Hon ble Chattisgarh High Court in the case of Ambuja Cements Eastern Ltd. (supra) and the judgement of Hon ble Rajasthan High Court in the case of Hindustan Zinc Ltd. (supra). In view of this, the impugned order denying the cenvat credit of Rs.7,643/- in respect of this item is not sustainable and the same has to be set aside. 10. Thus sofar as Appeal No. E/3178/2010 is concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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