TMI Blog2017 (8) TMI 829X X X X Extracts X X X X X X X X Extracts X X X X ..... the reliance upon the aforesaid decision by the Tribunal to reject the appellant's claim is not correct - there is nothing on record to indicate the exact manner in which the welding electrodes are used in the appellant's factory. CENVAT credit is dependent upon the manner of use in the manufacture of final products in the assessee's factory. This aspect viz. manner of use of welding electrodes in the appellant's factory has not been examined for the purpose of determining whether the definition of capital goods as provided in Rule 57Q of the Central Excise Rules would be satisfied. This factual determination in the context of Rule 57Q of the Central Excise Rules is necessary before determining whether the welding electrodes in case of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had raised one more question which reads as under:- Whether the activity of extraction and crushing of Limestone with the use of blow Bars and other equipment used in quarry like Crusher Dumper/HEM (Spares like Bearing, Housing,Grinding Path Beam, Liner Plate, Fluid Coupling, Conveyor Belt, UF, Coil, Tyre/Flap and Batteries), in the mines and crusher located in the vicinity of the mines is not an activity of manufacture in view of the decision of the Hon'ble Supreme Court in Jaypee Raw Cement Vs. CCE, 2001 (133) ELT 3 (SC) holding that the extraction of Limestone from mines is an activity of manufacture? 4. Mr. Thakur states that although the aforesaid question was not admitted by this Court as a substantial question of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure . These words are not found in Rule 57Q of the Central Excise Rules during the period we are concerned with i.e. May to December,1995. Thus this question (B) does not give rise to any substantial question of law and it is dismissed. 7. So far as question (A) is concerned, we note that the impugned order of the Tribunal has disallowed the claim for modvat credit of capital goods by relying upon the decision of the Jaypee Rewa Cement .vs. CCE 2001 (133) ELT 3 (S.C.). However, on perusal of the aforesaid decision, we find that it did not deal with the issue of modvat credit of capital goods under Rule 57Q, but was concerned with modvat credit on inputs in terms of Rule 57A of the Central Excise Rules. Thus the reliance upon the afores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods credit is not granted merely on the basis of the goods per se, if the good involved is not classifiable under the specific Chapters of the Tariff Act listed in Rule 57Q sub-clause (d) therein. In such cases, it is dependent upon the manner of use in the manufacture of final products in the assessee's factory. This aspect viz. manner of use of welding electrodes in the appellant's factory has not been examined for the purpose of determining whether the definition of capital goods as provided in Rule 57Q of the Central Excise Rules would be satisfied. This factual determination in the context of Rule 57Q of the Central Excise Rules is necessary before determining whether the welding electrodes in case of appellant, satisfies the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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