TMI Blog2008 (9) TMI 675X X X X Extracts X X X X X X X X Extracts X X X X ..... nt assessee disallowing Cenvat credit amounting to Rs. 33,67,481/-against the same impugned order. The period involved is May, 2003 to September, 2004. The grievance of the Department is that the adjudicating Commissioner has wrongly allowed the Cenvat credit in respect of various iron and steel products and cement used by the assessee in setting up the new integrated sponge iron plant and its auxiliary units. The grievance of the assessee is that the adjudicating Commissioner has denied the Cenvat credit on the three items, namely (i) Welding Electrode, (ii) Ammonium Nitrate (iii) Galvanized Tower Materials. 2. Dr. Gautam Ray, ld. Jt. CDR assisted by Shri S. Das, ld. Additional Commissioner of Central Excise, Bhubaneswar II, argues at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r materials have been held as not eligible for Cenvat credit by the recent decision of this Bench vide Commissioner of Central Excise, Customs Service Tax, BBSR II v. Shyam DRI Power Ltd. - 2008 (221) E.L.T. 534 (Tri.-Kolkata). 4. Shri M. P. Debnath, Ld. Advocate, appearing for the assessee, supports the order of the adjudicating Commissioner in respect of iron and steel products and cement. He states that similar items have been allowed Cenvat credit by a decision of the Bombay Bench of the Tribunal in the case of the respondent assessee s own unit vide Bhushan Steel Strips Ltd. v. Commissioner of Central Excise, Raigad - 2008 (223) E.L.T. 517 (Tri.-Mumbai). He further states that the ld. Vice President and the ld. Member sitting on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmr. of Central Excise v. M/s Gujarat Ambuja Cement Ltd. dated 24-6-2008 [2008 (230) E.L.T. 221 (H.P.)] in Ex. Ref. No. 5 of 2000 (unreported); (ii) Union of India v. Hindustan Zinc Ltd. - 2007 (214) E.L.T. 510 (Raj.); (iii) CCE, Coimbatore v. Madras Aluminium Co. Ltd. - 2008 (226) E.L.T. 342 (Mad.). He admits that these decisions being of very recent origin, were not before the adjudicating Commissioner. 5. As regards the assessees appeal, he states that in view of the recent decision of the Hon ble Rajasthan High Court in the case of Hindustan Zinc Ltd. v. Union of India Ors. - 2008 (228) E.L.T. 517 (Raj.) = 2008 (87) RLT 563 (Raj.), welding electrode should be allowed Cenvat credit. The ld. Jt. CDR opposes this propositio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed goods nor as machinery to qualify as capital goods. 7. On a query from the Bench, both sides agree that considerable amount of cement and iron and steel product has been used admittedly for civil construction outside the production unit and that the adjudicating Commissioner has merely gone by the bifurcation given in this regard by the appellant assessee without causing any verification. We are, therefore, of the view that in the first instance an exercise needs to be done to cross-check the declaration given by the appellant assessee in this regard and to accurately determine, how much of cement and iron and steel items have been used outside the plant area which are not clearly eligible for grant of Cenvat credit. Several decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter was heard for some time, when the ld. Advocate himself suggested that the matter can perhaps be remanded to the adjudicating Commissioner for fresh decision, we find that the departmental representatives are also not averse to that course of action as factual verification of utilization of the impugned goods is necessary apart from the necessity to consider several cited decisions which are of recent origin and of course, the earlier decision of the Hon ble Supreme Court in the case of J.K. Cotton Spg. Wvg. Mills Co. Ltd. (cited supra). Hence, with the consent of both sides, we set aside the impugned order in toto and allow both the appeals by way of remand with the direction that the adjudicating Commissioner shall readjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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