Customs, Excise and Gold Tribunal - Delhi
M/S. J.K. Udaipur Udyog Ltd. vs Cce, Jaipur on 16 January, 2001
Equivalent citations: 2002(148)ELT1084(TRI-DEL)
ORDER
P.G. Chacko
1. This appeal filed by the assessees is against the Order of the Commissioner (Appeals) who held the following items to be ineligible for modvat credit under Rule 57A of the Central Excise Rules on the ground that the good were used in the mining area which did not form part of their factory.
1. Tooth Point for PC-650
2. Aerial Rope
3. Flat and chiesel
4. Compressor spare parts
5. Various type pulleys
6. Conveyor belt
2. It appears that the issue which was considered by the lower appellate authority was as to whether the mining area could be covered by the definition of "factory" under Section 2(e) of the Central Excise Act. The authority followed the ratio of the Tribunal's decision in the case of Madras Cement Ltd. Vs. CCE Hyderabad [1998 (74) ECR 201] and held that the mining area was not covered by the definition of factory and, therefore, the aforesaid items used outside the factory could not be held to be eligible for credit under Rule 57A. It is fairly conceded by ld. Advocate that the above issue stands aquarely covered against assessees by the Tribunal's Larger Bench decision in the case of Jaypee Rewa Cement [2000 (38) RLT 1111]. Ld. Counsel would, however, challenge the impugned order on another ground namely that the Commissioner (Appeals) considered the modvatability of the goods as inputs under Rule 57A whereas the adjudicating authority had treated the goods as capital goods under Rule 57Q. I am unable to accept this new ground, which is not a pure legal ground which can be raised at the bar. This ground is very much a factual one which ought to have been raised in the memorandum of appeal. I have not come across any such ground in the appeal memo. Even if the new ground now raised by ld. counsel were to be accepted, the appellants still do not stand to gain inasmuch as there is another Larger Bench decision of the Tribunal holding that capital goods installed outside the "factory" (as defined under Section 2(e) of the Act) will not qualify for modvat credit under Rule 57Q vide Vikas Industrial Gas Vs. CCE [2000 (118) ELT 257]
3. In view of the fact that the issue considered by the lower appellate authority stands settled against the assessees as aforesaid, this appeal of the assessees fails on merits. However, having regard to the facts and circumstances of the case, I find that there was no warrant for imposition of any penalty on the party. Therefore, the penalty is set aside. The appeal is accordingly disposed of.