Custom, Excise & Service Tax Tribunal
M/S Maihar Cement vs Cce, Bhopal on 17 June, 2010
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No.2, R. K. Puram, New Delhi. Date of hearing/decision: 17.06.2010 For approval and signature: Honble Shri Justice R.M.S. Khandeparkar, President Honble Shri Rakesh Kumar, Member (Technical) 1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982. 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether Their Lordships wish to see the fair copy of the Order? 4 Whether Order is to be circulated to the Departmental authorities? Excise Appeal No. 38 of 2005 [Arising out of order-in-Appeal No. 330-CE/BPL/2004 dated 04.10.2004 passed by the Commissioner (Appeals) Customs & Central Excise, Bhopal]. M/s Maihar Cement Appellants Vs. CCE, Bhopal Respondent
Appearance: Rep. by Sh. Sanjay Grover, Advocate for the appellants. Rep. by Sh. K.P. Singh, DR for the respondent.
Coram: Honble Sh. Justice R.M.S. Khandeparkar, President Honble Sh. Rakesh Kumar, Member (Technical) Oral order No._____ Per: Shri Justice R.M.S. Khandeparkar:
The short point which arises for consideration in the matter is, whether the benefit of modvat credit in relation to the duty paid on spares of OLBC & Crusher which are used for crushing the limestone and further for transportation from the mines to the factory, both having located at the distance of 6 Kms. in between is available or not. The similar issue had arisen in the matter of Birla Corporation Ltd., vs. CCE reported in 2005 (186) ELT 266 (S.C.) before the Apex Court, wherein taking into consideration the decision in the matter of Commissioner vs. Pepsico India Holdings Ltd. reported in 2001 (130) ELT 193 (Tribunal) as well as in the matter of J.K. Udaipur Udyog Ltd. vs. Commissioner, reported in 2002 (147) ELT 996 (Tribunal) and the departments letter dated 5th June 2003, had held thus:-
5. In the instant case the same question arises for consideration and the facts are almost identical. We cannot permit the Revenue to take a different stand in this case. The earlier appeal involving identical issue was not pressed and was therefore, dismissed. The respondent having taken a conscious decision to accept the principles laid down in Pepsico India Holdings Ltd. (supra) cannot be permitted to take the opposite stand in this case. If we were to permit them to do so, the law will be in a state of confusion and will place the authorities as well as the assessees in a quandary.
6. We, therefore, allow this appeal and hold that Modvat credit is available to the appellant in the facts and circumstances of the case. This appeal is accordingly allowed. The order of the CEGAT is set aside.
2. In fact, similar issue had arisen in the appellants matter in Central Excise Appeal No. 3300 of 2004 which was disposed of on 3rd July 2008 in accordance with the said decision read with the decision of Vikram Cement vs. Commissioner reported in 2006 (194) ELT 3 (SC).
3. Though the learned DR tried to distinguish the matter by referring to the decision of the Apex Court in CCE, Raipur vs. J.K. Udaipur Udyog Ltd., reported in 2004 (171) ELT 289 (SC), it is apparent from the decision of the Apex Court in Vikram Cements case that the view taken in J.K. Udaipur Udyogs case was over ruled.
4. The point sought to be raised in the matter is no more res integra and stands answered by the above referred decisions. The present appeal is, therefore, disposed of in terms of the decision in Central Excise Appeal No. 3300 of 2004 delivered on 3rd July 2008. Consequently, the impugned order is set aside with consequential relief to the appellants.
(Justice R.M.S. Khandeparkar) (President) (Rakesh Kumar) Member (Technical) Pant ` ??
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