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2.4. The other two appeals bearing Nos.E-135 & 136/10 are filed by the Revenue challenging the order passed by the Commissioner of Central Excise(Appeals), who, by a common order disposed two Orders-in-Original holding that CENVAT Credit on rails are admissible. 3. The learned Sr. Advocate Dr.Samir Chakraborty appearing for the Appellants, namely, M/s.Tata Steel Ltd. and M/s.SAIL submitted that the dispute of eligibility to CENVAT Credit on the inputs/capital goods viz. rails, railway track materials is common to all the appeals and facts are more or less similar. He has submitted that rails and other materials such as sleepers, points and crossings used in laying of railway tracks for movement of material, handling equipments and also in the overhead cranes in the appellants respective steel works at Jamshedpur/Durgapur. These rails were used for movement of raw materials as well as finished products inside the factory premises, wherein dutiable iron and steel products were manufactured, hence eligible to CENVAT Credit as capital goods/inputs.

3.4 In respect of appeals filed by M/s.SAIL, challenging the contention of the Revenue that M/s.SAIL had declared and accounted the railway sleepers and rails as capital asset and consequently even though no depreciation might have been availed for the purpose of Income Tax on that part of the value representing Central Excise duty, the depreciation benefit having been enjoyed on the value of the rails, net of central excise duty, the claim for CENVAT Credit on inputs is to be disallowed, it is his contention that the Revenues allegation is not only factually erroneous, but also irrelevant in determining whether or not CENVAT Credit under the CENVAT Credit Rules is available in respect of the duty paid on the said goods. It is his contention that none of the input material involved, including rails have been capitalized. On the contrary, the same were reflected in the Expenditure part of the balance sheet of SAIL, under the heading Stores and Spares consumed. He has contended that in no balance sheet of a company, goods and materials are shown as capital goods. These are disclosed, in case they are so, as capital asset; the distinction between capital assets and capital goods has been explained by the Apex Court in the case of CCE v. Ginni Filaments Ltd.  2005 (181) ELT 145(SC).

3.5 Further he has submitted in view of the decision laid down by the Honble Supreme Court, High Court and the Tribunal, the said goods are inputs and/or capital goods, hence, eligible to the benefit of CENVAT Credit. It is his contention that to be called as inputs and eligible to CENVAT Credit under the CENVAT Credit Rules, except those specified in Rule 2(g)/2(k) of CENVAT Credit Rules, 2002/2004 and those which are capital goods as defined in Rule 2(b)/2(a) of CENVAT Credit Rules, 2002/2004, have to be, inter alia, used in or in relation to manufacture of final products whether directly or indirectly in the factory of the manufacturer. Hence, there is no requirement for the said goods to enter into the mainstream process of manufacture of final products in the factory. So long as it can be shown that the material used as inputs have a nexus, even indirect with a process, which is integrally connected with the ultimate production of the final product till they are fit for being put into marketing stream and such process is so integrally connected with the ultimately production of the final products that it would be commercially inexpedient to produce the finished goods without the process, all such inputs are eligible to benefit of CENVAT Credit. The transfer of raw materials and finished products and handling thereof for the purpose of such transfer is integrally connected with the process of manufacture. The railway tracks are and would be used in the operation of transfer of raw materials and finished product. Thus, they are used in or in relation to manufacture of final product and accordingly raw materials are eligible to CENVAT Credit as inputs under rule 2(g)/2(k) of CENVAT Credit Rules,2002/2004.

5.5 On going through the orders impugned in the present appeals, we find that no serious analysis of the relevant provisions of the statute and the principle of law settled in this regard while disallowing or allowing the credit had been recorded. The ld. Sr. Advocate Dr. Chakraborty has vehemently argued that the principle of admissibility of CENVAT Credit on rail and railway track materials is no more res integra which has been settled by the Honble Supreme Court in the recent judgment of M/s Jayaswal Neco Ltd.s case (supra). It is his contention that since the Honble Apex Court has categorically held that CENVAT credit on the railway track materials are admissible, being essential and integrally connected to the process of manufacture of final products, even though the judgement relates to Rule 57Q of erstwhile Central Excise Rules, 1944, the principle laid down therein applicable even to the present cases under Cenvat Credit Rules,2002/2004. In support, he refers to the judgment of Honble Supreme Court in Vikram Cements case (supra) wherein their Lordships have held that there is no difference in the MODVAT and CENVAT Scheme. Challenging the said contention, the learned Special Counsel for the Revenue has submitted that the shortcomings in the erstwhile Rule 57Q had been done away with after the introduction of new set of Rules governing admissibility of CENVAT Credit on capital goods and inputs. The present definition of capital goods is restrictive and chapter specific in comparison to the earlier provisions. Besides, it is his contention that since the appellants have all along been claiming the CENVAT Credit on rails as inputs they should not be allowed to change their stand and claim the benefit as capital goods before this forum. This argument has also been rebutted by the learned Sr.Advcoate referring to the judgements of this Tribunal in Krishna Sahkari Chini Mills Ltd. & Bhilai Steel Plants case(supra), wherein it is observed that there is no bar in changing the claim of admissibility of CENVAT credit either as capital goods or as inputs at any stage of the proceeding. We find force in the contention of the Ld. Advocate for the Appellant, in view of the principle laid down in the above two cases that credit cannot be denied merely on the ground that the claims to CENVAT credit have been changed at the Appellate stage from inputs to capital goods and vice versa.