TMI Blog2019 (9) TMI 1194X X X X Extracts X X X X X X X X Extracts X X X X ..... t on capital goods used in the Fly Ash Handling Plant. Captive does not mean that it has to be within the factory premises only. In VIKRAM CEMENT VERSUS CCE, INDORE [ 2006 (2) TMI 1 - SUPREME COURT] , the Hon ble Supreme Court has specifically held that explosives in the mines are used for manufacture of final products and hence Modvat credit cannot be denied even though not used in the factory. The Hon ble Supreme Court has made it clear that if the capital goods are used by the assessee for their own use, be it inside the factory premises or outside the factory premises, they are entitled for Modvat credit. In the instant matter, the Fly Ash so handled at the plant is used entirely in the appellant s factory for the manufacture o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uted that the Cenvat credit was denied to the Appellant only on the ground that the capital goods in question was not installed or utilized in the Appellant s cement factory. According to the department since these capital goods/ inputs were used/installed in the premises of Chandrapur Super Thermal Power Station (CTSPS), which is 60 kms away from the Appellant s factory, therefore the Appellants are not entitle for availing the Cenvat credit in respect of inputs/capital goods used/purchased by the Appellants for setting up the Fly Ash Handling Plant at the premises of CTSPS. The period involved is January, 2007 to June, 2007 and July, 2007 to March, 2008. For the period January, 2007 to June, 2007, two show cause notices dated 28.1.2008 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He also submitted that it is an extension of the factory of the appellants which is away from the factory premises of the appellants. In other words Fly Ash Plant is essentially integrated unit of the appellants manufacturing factory as it ensures timely supply of the input i.e. fly ash to the appellants which is essential raw material for the manufacturing activity of the appellants and therefore Cenvat Credit in respect of capital goods used for settling the Fly Ash Handling Plant is admissible to the appellants. In support of his submissions, the learned counsel relied upon the following decisions:- (i) Vikram Cement vs. CCE; 2006(194) ELT 3 (SC) (ii) Vikram Cement vs. CCE; 2006(197) ELT 145 (SC) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner (Appeals), Nagpur vide Order-in- Appeal dated 18.12.2018 in Appeal No. NGP/EXCUS/000/APPL/318/18-19/2314. He also handed over the copy of the said Order-in-Appeal during the course of hearing in the instant matter. The relevant paragraphs of the said order are as under:- xxx xxx xxx 36. The issue before to be decided is whether the Cenvat Credit availed by the appellant as Capital goods for setting up of Fly Ash Handling Plant at the site of CSTPS, which is 60 Kms outside the factory premises of the appellant. 37. The issue is no longer res-integra in view of the Hon ble Supreme Court judgement in the case of Vikram Cement Vs. CCE reported in 2006(197)ELT 145 (SC), wherein it has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 2004. 39. In the instant case, the appellant s Fly Ash Plant is located 60 kms away from the factory in the premises of M/s CSTPS and it is exclusively used by the appellant s factory only and is not at all supplied to any other customers. Thus applying the ratio of the judgement of the Hon ble Supreme Court cited above, the Cenvat credit on capital goods used in the Fly Ash Plant which is meant exclusively for the appellant, will be eligible for availing the Cenvat credit. 40. In view of the I have no hesitation to set-aside the impugned order and allow the appeal of the appellant. I order accordingly. 6. Only because the flay ash handling plant is situated 60 kms. away from the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtent of credit admissible, is regulated and prescribed under Cenvat Credit Rules, 2004. To be eligible for Cenvat Credit, the inputs/capital goods have to be used in the factory for use in manufacture of final product. In view of the material placed on record there is no doubt that the fly ash produced in the Plant in question exclusively used in the factory of the appellants. Although the recent decision of the learned Commissioner (supra) in Appellants own case is not binding, but I completely agree with the findings recorded in the said Order-in- Appeal. In the said order the learned commissioner has recorded a clear finding that the Fly Ash produced in the Plant in question is exclusively used by the appellant s factory and is not at ..... X X X X Extracts X X X X X X X X Extracts X X X X
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