- (1.) BY way of this Central Excise Appeal, the Revenue seeks to question the Final Order No. 204-210/06-EX dated 02.02.2006 whereby the Customs, Excise and Service Tax Appellate Tribunal, New Delhi ('the Tribunal') has allowed the appeal (No.E/1473/2005) filed by the assessee and has granted consequential relief of availing Cenvat Credit on cement, used as construction/building material in the mines.
(2.) IN brief, the relevant background aspects of the matter are that the respondent -assessee is engaged in manufacture of lead, zinc and other metal concentrates. The respondent-assessee had availed Cenvat Credit to the tune of Rs.36,80,224/- on the inputs namely, cement, explosive, lubricant oil and grease used in mining area treating them as inputs under Rule 2(g) of the erstwhile Cenvat Credit Rules, 2002 ('the Rules of 2002'). It had been the case of the department that ordinary portland cement had been used by the respondent for the purpose of filling the gapes in the form of cut and fill for excavation of ores; and obviously, cement had been used as a construction material so as to provide safety to the roof of mining area. According to the appellant, cement being a construction material, is not eligible as input for availing Cenvat Credit under Rule 2 (g) of the Rules of 2002. A show cause notice was issued to the respondent- assessee proposing recovery of credit so taken on cement alongwith interest and penalty. The matter in the said show cause notice was decided by the Assistant Commissioner, Central Excise Division, Udaipur in his Order-in-Original No.696/2004-CE dated 25.08.2004 confirming the demand with interest but without imposing penalty.
(3.) BEING aggrieved of the aforesaid order dated 25.08.2004, the respondent-assessee filed an appeal which was rejected by the Appellate Authority by its order dated 04.02.2005. The Tribunal, however, in its impugned order dated 02.02.2006 proceeded to allow the assessee's appeal while relying upon the decision of the Hon'ble Apex court in the case of M/s Vikram Cement Vs. Commissioner of Central Excise, Indore reported in 2006-TIOL-04-SC-CX-LB. Hence, this appeal.;