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TMI Blog2024 (10) TMI 1540X X X X Extracts X X X X X X X X Extracts X X X X ..... the benefit of credit as capital goods and as rightly decided by the original authority, the appellant is also not eligible for benefit of credit as inputs and hence, denied the benefit of cenvat credit on dumpers. Aggrieved by the above order, the appellant is in appeal before this Tribunal. 3. The Learned Counsel on behalf of the appellant submitted that the dumpers were used for handling of the raw materials, hence essential requirement and is to be considered as an accessory of the main plant that is limestone crusher and cement mill. It is submitted that the limestone is excavated and the crushed limestone is brought to the crusher through the dumper and then crushed limestone is taken to the factory for the manufacture of clinker and cement. This entire process is an integrated process and in view of the apex court decision in the case of Vikram Cements: 2006 (197) ELT 145 (SC), the credit taken on capital goods is admissible. He also submits that the issue stand settled in favour of the appellant by the following decisions: (i) Aditya Cement Vs. Commissioner of Central Excise, Jaipur - II - 2017 (346) E.L.T. 300 (Tri.- Del.) (ii) Bharathi Cement Corporation Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) "input" means - (i) all goods, except light diesel oil, high speed diesel oil and motor spirit, commonly known as petrol, used in or in relation to the manufacture of final products whether directly or indirectly and whether contained in the final product or not and includes lubricating oils, greases, cutting oils, coolants, accessories of the final products cleared along with the final product, goods used as paint, or as packing material, or as fuel, or for generation of electricity or steam used in or in relation to manufacture of final products or for any other purpose, within the factory of production; (ii) all goods, except light diesel oil, high speed diesel oil, motor spirit, commonly known as petrol and motor vehicles, used for providing any output service; Explanation 1. - The light diesel oil, high speed diesel oil or motor spirit, commonly known as petrol, shall not be treated as an input for any purpose whatsoever. Explanation 2. - Input include goods used in the manufacture of capital goods which are further used in the factory of the manufacturer; 5.1 As per the definition reproduced above, the dumpers cannot be considered as inputs as they are ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vikram Cement {2006(197) ELT 145(SC)} (c) CCE Hyderabad Vs India Cement Ltd {2009) (238) ELT (193)} etc. (ii) That the Dumpers are used as accessories of the capital goods and there are eligible to avail Cenvat Credit on them but the said fact was not considered by the Adjudicating Authority. 5.4 As seen from the grounds of appeal reproduced above before the learned Commissioner (Appeals), the only issue to be decided is whether the appellant is eligible for the benefit of cenvat credit on the dumpers as 'Capital Goods'. As already discussed in view of the definition of the 'Capital Goods', the appellant is clearly not eligible for the benefit of the cenvat credit treating the dumpers as 'Capital Goods'. The decisions of M/s. Aditya Cement (supra) and M/s. Bharathi Cement (supra) is not relevant in view of the fact that the appellant himself has considered the dumpers as capital goods and they have also admittedly claimed depreciation on these assets. The decision in the case of M/s. Vikram Cement (supra) is also not applicable since the mines where the dumpers are used are not captive mines. The Hon'ble Supreme Court in the above judgment had observed as follows: "A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proving any form of mala fide lies on the shoulders of the one alleging it. This Court observed in Union of India v. Ashok Kumar & Ors. - (2005) 8 SCC 760 that "it cannot be overlooked that burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demand proof of a high order of credibility. 25. Moreover, this Court, through a catena of decisions, has held that the proviso to Section 28 of the Act finds application only when specific and explicit averments challenging the fides of the conduct of the assessee are made in the show cause notice, a requirement that the show cause notice in the present case fails to meet. In Aban Loyd Chiles Offshore Limited and Ors. (supra), this Court made the following observations : "21. This Court while interpreting Section 11-A of the Central Excise Act in Collector of Central Excise v. H.M.M. Ltd. (supra) has observed that in order to attract the proviso to Section 11-A(1) it must be shown that the excise duty escaped by reason of fraud, collusion or willful misstatement of suppression of fact with intent to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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