TMI Blog2002 (8) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod April to September, 2000. The original authority followed the Larger Bench decision of this Tribunal in Jaypee Rewa Cement v. CCE, Raipur [2000 (119) E.L.T. 552 (Tribunal - Larger Bench)] for holding that the Explosives used for mining limestone at the mines outside the Cement Factory as also the Lubricants used for lubricating machinery installed in or around the limestone mines were not eligible inputs for Cenvat credit during the aforesaid period. The lower appellate authority relied on the decision of the Hon'ble Supreme Court in Jaypee Rewa Cement v. CCE, Raipur [2001 (133) E.L.T. 3 (S.C.)] and held that the Explosives and Lubricants were covered by the definition of "inputs" under Clause (d) of Rule 57AA and hence eligible for C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of Explosives used for mining limestone outside a Cement Factory is applicable with equal force to the instant case involving the question of admissibility of Cenvat credit in respect of the same goods used for the same purpose. Ld. Counsel submits that the essential condition to be satisfied for the purpose of taking Modvat or Cenvat credit was that the inputs should have been used in or in relation to the manufacture of the final products whether directly or indirectly and whether contained in the final product or not. According to the ld. Counsel, where this condition as laid down in the former part of the definition of "input" under Clause (d) of Rule 57AA is satisfied, there is no need to test the admissibility of the credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l goods, except high speed diesel oil and motor spirit, commonly known as petrol, used in or in relation to the manufacture of final products whether directly or indirectly and whether contained in the final product or not, and includes accessories of the final products cleared along with the final product, goods used as paint, or as packing material, or as fuel, or for generation of electricity or steam used for manufacture of final products or for any other purpose, within the factory of production, and also includes lubricating oils, greases, cutting oils and coolants.' 7.The primary question arising for consideration is whether the goods under reference would be covered by the substantive (italicized) part of the above definition. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were used in an altogether different manner. The lubricants were admittedly used for lubricating certain machinery installed in or around the limestone mines, away from the cement factory. Going by the submissions made by the counsel in answer to queries from the Bench, I observe that such machinery was used for mechanical processes like crushing of limestone outside the cement factory. There is nothing on record to show that the assessee had claimed to be entitled to capital goods credit on such machinery. In my considered view, the lubricants which were used for lubricating the machinery could be considered to have been used in or in relation to the manufacture of final products, if and only if the machinery itself was used for the manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an opportunity, his clients would endeavour to show that the lubricants were used on eligible capital goods. I am inclined, in the interest of justice, to afford such an opportunity to the assessee, having regard to the fact that both the lower authorities failed to distinguish the case of lubricants from that of explosives. Accordingly, the orders of the lower authorities are set aside to the extent they relate to Cenvat credit on lubricants. The adjudicating authority will re-adjudicate the dispute relating to the lubricants after giving the respondents an opportunity to prove that, during the material period, they had used the lubricants and greases on machinery which was used for the manufacture of their final product and on which Modv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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