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TMI Blog2010 (10) TMI 868X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant against the order of the adjudicating authority has been dismissed. 3. The appellant is essentially challenging the decision of the Excise Officers rejecting the claim of the appellant in relation to the CENVAT credit on the capital goods used in the fly ash extraction. 4. The appellant is the manufacturer of Cement classifiable under Chapter 25 of the Central Excise Tariff Act, 1985. The appellant sought permission to avail CENVAT credit of duty paid on the capital goods used in the erection of fly ash extraction plant at Vijayawada Thermal Power Station at Vijayawada. The said claim was rejected by the lower authorities on the ground that the activity was not essentially carried out within the captive mines and fly as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty Co. Ltd. case (supra), no fault can be found in the impugned order. 7. The Commissioner (Appeals), while confirming the denial of Modvat/Cenvat credit to the capital goods claimed by the appellant, has observed thus: "8. In the case on hand, the Appellants have entered into MOU with VTPS for extraction of fly ash for the contracted period of 10 years and during the said period, they are to maintain the fly ash extraction system and also get fly ash. Out of the two fly ash silos at VTPS, one is meant for their exclusive use and the other is to be shared by them with M/s. Vishnu Cements and Andhra Cements. The Appellants have taken a stand that the fly ash extraction system is their capital asset and used in or in relation to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that "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, if the mines are not captive mines but they supply to various other cement companies of different assessees, Modvat/Cenvat credit on capital goods used in such mines will not be available to the concerned assessees under the appropriate Modvat/Cenvat Rules". In the instant case, the Appellants have only undertaken the activity of upgrading the existing fly ash extractor in the premises of M/s. VTPL at Vijayawada. The drawing of analogy between the "captive mines", as discussed in the cited case law and "the fly ash extract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o various other cement companies of different assessees, Modvat/Cenvat credit on capital goods used in such mines will not be available to the concerned assessee under the appropriate Modvat/Cenvat Rules." 9. The detailed analysis of the materials on record by the Commissioner (Appeals) and the findings arrived at on the basis of such analysis clearly disclose that in the case in hand, it is abundantly clear that neither the extraction of fly ash takes place in the captive plant nor the fly ash generated is exclusively used in the factory of the appellant. This itself is sufficient to reject the claim of the appellant. 10. As rightly pointed out by the learned Joint CDR, the decision of the Apex Court in Ahmedabad Electricity Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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