1 D.B. CENTRAL EXCISE APPEAL NO.19/2006 Aditya Cement Vs. U.O.I. & Ors. Date : 12.01.2007 PRESENT HON'BLE MR. JUSTICE RAJESH BALIA HON'BLE MR. JUSTICE CHATRA RAM JAT Mr. Rajendra Mehta for the appellant. Mr. V.K. Mathur for the respondents. ________ Learned counsel for the appellant states that this appeal raises the same issue which was considered by the earlier decision of this Court in the appellant's own case D.B. OtherTax Reference No.46/2003 decided on 9.3.2006 concerning its entitlement to avail modvat/cenvat credit in respect of duties paid on inputs and capital goods used at captive mine site mineral won from which is exclusively used by the manufacturers. The copies of this appeal have been served in advance to learned counsel for the Revenue appearing for the respondents. The learned counsel for the parties are in agreement that the case is covered by the earlier decision of this Court in appellant's own case in D.B. 2 O.T.R. No.46/2003 decided on 9th March, 2006. The following question arises in this appeal against the order of Customs Excise and Service Tax Appellate Tribunal, New Delhi dated 19.10.2004:- Whether in the facts and circumstances of the present case, the capital goods /inputs used by the manufacturer at the site of captive mine, raw material of which is exclusively used in the manufacture of the end product by the assessee is eligible for availing modvat credit in respect of duties paid thereon. The dispute relates to the period from October 2000 to December 2000 when lubricants used in capital goods for their maintenance and running was included in the definition of inputs. The Tribunal has disallowed the assesssee's claim to avail modvat credit in respect of duties paid on lubricants following the decision of the Supreme Court in CCE, Jodhpur Vs. J.K. Udyog Ltd., 2004 (171) ELT 289. In that case, it has been held that Jay Pee Rewa Cement's case, the earlier 3 decision of the Supreme Court holding that the inputs used at captive mines are eligible to avail modvat credit of the Duties paid on such inputs is not applicable since amendment in the rule has been made. However, it is now a common ground that J.K. Udaipur Ugyog Ltd's case has since been held to be decided erroneously by Larger Bench of the Supreme Court on a reference made to it in M/s Vikram Cement's case 2006 (2) SCC 351. It has been held that inputs used at captive mines, the mineral won wherefrom is exclusively used by the manufacturer for his own manufacturing activity and not sold in market is eligible for availing modvat credit of the Duties paid thereon. By a later decision, in Vikram Cement's case, the capital goods used at captive mines were also held to be eligible for availing modvat credit on duties paid thereon. The principle was noticed by this Court in appellant's own case in D.B. Other Tax Reference Case No.46/2003 decided on 9th March, 2006. Accordingly, this appeal is allowed. It is held 4 that the inputs in question are eligible for availing modvat credit on the Duties paid thereon for the period in question. The order of the Tribunal is, therefore, set aside. There shall be no order as to costs. [CHATRA RAM JAT], J. [ RAJESH BALIA ], J. babulal/