1 D.B. CENTRAL EXCISE APPEAL NO.45/2006 Hindustan Zinc Ltd. Vs. The Assistant Commissioner, Customs and Excise Division, Bhilwara. Date : 22.01.2007 PRESENT HON'BLE MR. JUSTICE RAJESH BALIA HON'BLE MR. JUSTICE CHATRA RAM JAT Mr. Dinesh Mehta for the appellant. Mr. Vinit Kumar Mathur for the respondent. ________ The following question has been raised in this appeal against the order of the Central Excise Customs and Service Tax Appellate Tribunal:- “Whether in the facts and circumstances the Tribunal was justified in holding that the assessee is not entitled to claim Modvat Credit in respect of capital goods used at its captive mines, though he is entitled to avail Modvat Credit in respect of inputs used at captive mines by ignoring the decision of the Supreme Court in case of Vikram Cement Vs. CCE, Indore reported in 2006 (197) E.L.T. 145?” 2 The claim of the appellant to avail modvat credit in respect of capital goods used at its captive mines has been disallowed while accepting the appellant's claim to avail modvat credit in respect of inputs used at captive mines. It is pointed out by the learned counsel for the parties that issue has since been decided by the Supreme Court in Vikram Cement's case referred to in the aforesaid question that a manufacturer holding captive mines is entitled to avail modvat credit of duty paid on inputs and capital goods used at captive mines by overruling its earlier decision in J.K. Udaipur Udyog Ltd. Vs. CCE 2004 (7) SCC 344. The said decision in Vikram Cement's case has since been applied to the appellant's case also in D.B. Central Excise Appeal No.44/2006, this appeal is allowed and the orders of the Tribunal and authorities below are set aside. We hold that the assessee is entitled to avail modvat credit and cenvat credit on duties paid on capital goods which are used at its 3 captive mines, if the same is otherwise eligible for such credit. No order as to costs. [CHATRA RAM JAT], J. [ RAJESH BALIA ], J. babulal/