TMI Blog2019 (1) TMI 972X X X X Extracts X X X X X X X X Extracts X X X X ..... of appellant. - Excise Appeal Nos. E/51297 & 51425/2018 [SM] - A/50022-50023/2019-SM[BR] - Dated:- 2-1-2019 - MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Present for the Appellant: Mr. Shantanu Kumar, Advocate Present for the Respondent: Ms. Tamana Alam, DR ORDER PER: RACHNA GUPTA The facts relevant for the purpose are that the appellant herein is engaged in manufacture of lead and zinc concentrates, zinc cathode and sulfuric acid falling under chapter 26, 79 and 28 of first schedule to Central Excise Tariff Act. During the course of audit department noticed that the appellant had availed cenvat credit on cement used in mines for filling pits after extraction of ore. The same is denied by the department to be termed as input for the manufacture of the final product. Resultantly the respective cenvat credits have been disallowed and have been proposed to be recovered respectively for such an amount and for such a period vide such show cause notices. Resultantly, the present appeals. 2. I have heard Sh. Shantanu Kumar, Ld. Advocate for the appellant and Ms. Tamana Alam, Ld. DR for the Department. 3. It is submitted on behalf of the appellants that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... city or steam [or pumping of water] for captive use; or (iv) all goods used for providing any [output service, or]; [(v) all capital goods which have a value upto ten thousand rupees per piece.] but excludes (A) light diesel oil, high speed diesel oil or motor spirit, commonly known as petrol; (B) any goods used for (a) construction of a building or a civil structure or a part thereof; or (b) laying of foundation or making of structures for support of capital goods, except for the provision of any taxable service specified in sub-clauses (zn), (zzl), (zzm), (zzq), (zzzh) and (zzzza) of clause (105) of Section 65 of the Finance Act; ; ; (F) any goods which have no relationship whatsoever with the manufacture of a final product. 6. The department has relied upon 2k(iv) F clause of the definition that goods which have no relationship whatsoever with the manufacture of a final product are not the input. Therefore, it becomes necessary to understand as to whether the cement herein has any relation with the manufacture of final product or not (extraction of ore in present case). 7. For the purpose the Metalliferous M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : all goods used in the factory of the manufacturer of final product, other than the goods itemized in the excluded category mentioned therein, are eligible for consideration as input for the purpose of taking Cenvat credit. Thus, an assessee only needs to prove that the goods were received in the factory and that the same are not covered by any of the exclusions, since the definition of input is very wide intending to take within its ambit all goods used in the factory of the manufacturer of final product. Undisputedly, in the present case, cement has been used within the mining area, thus qualifies for cenvat credit. In support of this, reliance is placed upon the decision of the Hon ble Tribunal in the case of Prism Cement Ltd. Vs. CCE ST, Jabalpur, 2016 (338) ELT 593 (Tri. Del.) . 9. Thus, I opine that the cement used herein is a good which has relation, though indirectly, with the extraction of ore thus it qualifies for audit under Rule 2(k), prevailing during the relevant period. 10. Hon ble Apex Court in the case JK Cottons Spinning and Weaving Mills Co. Ltd. Vs. Sales Tax Officer, Kanpur 1991 (91) ELT 34 has held that : The expression in the manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plant and effluent treatment plant, all of which were part of the integral process of the manufacture of urea. After taking into consideration the earlier judgment in the case of C.C.E., Calcutta-II v. M/s. Eastend Paper Industries Ltd. AIR 1990 SC 1893, J.K. Cotton Spinning and Weaving Mills Co. Ltd. v. Sales Tax Officer, Kanpur, AIR 1965 SC 1310, C.C.E., New Delhi v. M/s. Ballarpur Industries Ltd.- 1989 (43) E.L.T. 804 (S.C.) = AIR 1990 S.C. 196 and Deputy CST v. Thomas Stephen Co. Ltd., 1988 (34) E.L.T. 412 (S.C.) = AIR 1988 S.C. 997 in paragraph 9, the Supreme Court held as follows : 9. That leaves us to consider whether the raw naphtha used to produce the ammonia which is used in the effluent treatment plant is eligible for the said exemption. It is too late in the day to take the view that the treatment of effluents from a plant is not an essential and integral part of the process of manufacture in the plant. The emphasis that has rightly been laid in recent years upon the environment and pollution control requires that all plants which emit effluents should be so equipped as to rid the effluents of dangerous properties. The apparatus used for such treatment of effluents i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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