ORDER
Gowri Shankar, Member (T)
1. The common question for consideration in these appeals is the eligibility to credit under Rule 57Q of the duty paid on various goods by the appellant.
2. Having heard the counsel for the appellant and the departmental representative, we proceed to give our findings on each items as below.
3. Ropeway and parts thereof. The appellant was engaged in the manufacture of cement and transported lime Stones from its quarries to various places. Credit has been denied on the ground that part of the ropeway was situated outside the factory. The reliance by the counsel for the appellant upon the Tribunal in J.K. Udaipur Udyog v. CC 2002 (147) 996 is well placed. In that decision, the Tribunal has held that a ropeway relating to cement -manufacture was capital goods because the extension of the ropeway outside the factory proceeded from the factory.
4. Blow bars and other equipments used in the quarry. Applying the ratio of the decision of the larger bench in Madras Cement v. CCE 2003 (56) RLT 978 these goods cannot be qualified as capital goods, as they were fixed outside the appellant’s factory.
5. Welding Electrodes. Oxygen and other gases. It is not in dispute that they were used in repairing or reconditioning. Accordingly, the decision of the Tribunal in Jaypee Rewa Cement v. CCE 2003 (57) RLT 739, these will not be considered as capital goods.
6. Lubricants. The decision of the larger bench of this Tribunal in CCE v. Modi Rubber Ltd 2000 (119) ELT 197 will apply to lubricants and the goods are eligible to be considered as inputs under Rule 57A.
7. Steel plates, angles, channels and cement. The counsel for the appellants does not press the claim in the appeal insofar as it relates to angles, channels, steels and cement on the ground that credit taken has
already been reversed.
8. Explosives used sin the quarry. BY applying the ratio of the judgment of the Supreme Court in Jaypee Rewa Cement v. CCE 2001 (133) ELT 3, these would be considered to be capital goods.
9. Refractory in appeal 1772/01. Various decisions of this Tribunal in Kolhapur Steel Industries v. CCE 2002 (149) ELT 918 held that refractories used for lining should be considered to be inputs.
10. The counsel for the appellants contends insofar as penalty is concerned, it had declared the goods and taken credit on its bonafide belief that they would be entitled to consideration as capital goods. He points out that this belief is not unreasonable particularly there were difference of opinion in different benches of this Tribunal, with regard to welding electrodes and goods used in quarries which have to be resolved by a larger bench. He also points out that there are contradictory view taken by different bench in regard to cement, steel, angles, channels etc. In the light of this position, noting that in the absence of allegation of any misdeclaration or failure to give information, we set a side the penalty.
11. The appeals are disposed of accordingly.