TMI Blog2016 (1) TMI 516X X X X Extracts X X X X X X X X Extracts X X X X ..... t credit. We also note that on these capital goods, the appellant has taken cenvat credit only on 28.11.2011. At the time of availment of cenvat credit, the provisions of Rule 2A (1A) were in force and there is no bar for availment of cenvat credit at that point of time. - Credit allowed - Decided in favor of assessee. - Excise Appeal No. 3572 of 2012 - FINAL ORDER NO. A/ 52568 /2015-EX(DB) - Dated:- 7-8-2015 - SHRI ASHOK JINDAL, MEMBER (JUDICIAL) AND MR. B RAVICHANDRAN, MEMBER (TECHNICAL) For the Petitioner : Shri Bipin Garg, Advocate For the Respondent : Shri Pramod Kumar, Jt. CDR ORDER Per Ashok Jindal : The appellant is in appeal against the impugned order. 2. The appellant is manufacturer of MS ingots, MS bars and TMT bars. The factory is located in plot No. 18, 19, 25, 26 27, SIDA Industrial Area, Sathariya, Jaunpur (UP). The appellant installed a power plant of 40 MW capacity at plot No. A-42 to 47, SIDA, Sathariya, Jaunpur. Admittedly, the said power plant is outside the factory premises i.e. 250 mts. Away from manufacturing plant. The said power plant is installed for generation of electricity which in turn is to be used by the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the goods in question have been procured prior to 01.04.2011 i.e. before the Notification No. 3/11 dated 1.3.11 which defines capital goods for availment of cenvat credit, and the said provision was made applicable retrospectively. Therefore, for the period prior to 01.04.2011, capital goods procured by the appellants are not entitled to take cenvat credit. Infact as per the decision of this Tribunal in the case of Grasim Industries Ltd. [2004 (176) ELT 265 (Tri-Chennai)], the date of receipt of goods in the factory is the relevant date for availment of Cenvat Credit which was affirmed by the Honble Apex Court reported in [2005 (179) ELT A 38 SC]. Therefore, he submits that adjudicating authority has rightly denied the cenvat credit to the appellants. 6. Heard the parties. Considered the submissions. 7. On going through the arguments advanced by both the sides, the short issue to be decided by us is as under:- whether the appellant is entitled to take cenvat credit on capital goods outside the factory for generation of electricity in power plant for the capital goods procured prior to 1.4.2011 whereas cenvat credit is taken after 1.4.2011 or not. We have gone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerned 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, and it is found that the said goods were being used in the lime stone mines outside the factory of the assessee, Modvat/Cenvat credit on capital goods used in such mines will not be available to the concerned assessee under the appropriate Modvat/Cenvat Rules. In order to get a clear finding on the issue, all the matters are remanded to the respective original authorities for decision only on the above issue. 10. Further, this Tribunal in the case of Hindalco Industries (supra) on the identical issue has observed as under:- 6. The point of dispute in this case is as to whether the inputs and capital goods used for generation of power in Renusagar Power Plant, would be eligible for Cenvat credit, even though the power plant is not located within the factory premises and it is located at distance of about 40-50 kms. from the factory. There is no dispute about the fact that though initially the power plant was owned by M/s Renusagar Power Company, this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the factory would be an input for the purpose of obtaining credit of duty payable thereon. As far as explanation is concerned, the inputs are restricted to the inputs notified under Section 57A. There is no dispute that both explosives and lime stone are notified under Section 57A for manufacture of final product viz. cement. 6.1 In this judgment, the Apex Court over-ruled its earlier judgment in the case of CCE v. J.K. Udaipur Udyog Ltd. - 2004 (171) E.L.T. 289 (S.C.). 6.2 The Apex Court in its subsequent judgment in the case of Vikram Cement v. CCE, Indore reported in 2006 (197) E.L.T. 145 (S.C.) again held that the explosives, lubricating oil and capital goods used in the mines for mining of lime stone which is used in the cement factory located at some distance away would be eligible for Cenvat credit, if the mines are captive mines so that they along with the factory constitute one integrated unit. Same view has been taken by the Apex Court in case of Madras Cements Ltd. v. CCE reported in 2010 (257) E.L.T. 321 (S.C.). 6.3 We are of the view that the ratio of the above-mentioned judgments of the Apex Court is squarely applicable to the facts of this cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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