Customs, Excise and Gold Tribunal - Delhi
South Eastern Coalfields Ltd. vs Commissioner Of C. Ex. on 10 October, 2002
Equivalent citations: 2003(155)ELT87(TRI-DEL)
JUDGMENT V.K. Agrawal, Member (T)
1. In these four appeals, filed by M/s. South Eastern Coalfields Ltd., the issue involved is whether the exemption contained in Notification No. 63/95-C.E., dated 16-3-1995 is available to the goods manufactured by them in their Workshop, Korba.
2. When the matters were called, no one was present on behalf of the Appellants. We observe that on earlier two occasions also when the matters were posted for hearing the Appellants had requested for adjournment. The learned S.D.R. points out that the issue involved has already been decided against the appellants in their own appeal as reported in 2001 (127) E.L.T. 554 (T). The Appellants have also under their letter dated 7-1-2002 has requested for adjourning the hearing as their SLP is pending before the Hon'ble Supreme Court for judgment on similar issue. In view of this, the adjournment request is not acceded to and the appeals are taken up for disposal after perusing the records and hearing Ms. Neeta Lal Butalia, learned S.D.R.
3. The Appellants have submitted in their memorandum of Appeal that the Central Electrical and Mechanical Workshop under the control of South Eastern Coalfield Ltd. was established at Korba in 1967 to facilitate repair of all mining machinery and equipments used in the adjacent coal mines under the management of Coal India Ltd.; that the Central Government has declared the workshop as a mine under the provisions of Section 82 of the Mines Act, 1952 under certificate dated 1-5-1969; that a licence under the Factories Act was obtained from the Chief Inspector of Factories, Indore as it was pointed out by the said authority that such a licence was mandatory since the factory was engaging about 667 works and power was used for manufacturing activities; that the Adjudicating Authority has demanded Central Excise duty and imposed penalty on the ground that the workshop having been registered under the Factories Act ceased to be operated under the Mines Act, 1952 and the nearest mines being 3 Km away from the workshop, it could not be said that it was situated in a mine; that the Adjudicating Authority had based his argument on the exclusion clause in Section 2(m)(ii) which reads "but does not include a mine subject to the operation of the Mines Act, 1952"; that prima facie the clause "mine subject to the operation of the Mines Act" refers to the actual mining activity and the workshop was not concerned with such mining activity and being a factory had to come under the Factories Act. They have, further, submitted that there cannot be any argument that the same unit cannot be covered by two different statutes; that the situation which prevailed prior to the registration under the Factories Act continues after such registration; that the Superintendent Central Excise, under letter dated 19-1-89, had clarified that they were entitled to exemption from payment of duty; that the Adjudicating Authority has distinguished the Tribunal's Final Order Nos. A 1262-1263/97, dated 16-9-97 in the case of Central Coalfield Ltd. v. CCE, Jamshedpur on the ground that the said workshop was not registered under the Factories Act; that the fact is that the workshop considered by the Tribunal was also registered under the Factories Act. It has been finally mentioned in the memorandums of Appeal that the decision of the Adjudicating Authority that clearances to M/s. Northern Coalfields Ltd. and M/s. Mahanadi Coalfields Ltd. cannot enjoy exemption since these are not under the same management is erroneous because no goods were delivered to these mines during the relevant period; that in any case, M/s. Coal India Ltd. is the holding Co. of all these subsidiary companies and only for administrative reasons the companies have been allowed to function as self contained units.
4. Countering the arguments, learned S.D.R submitted that the certificate of the Department of Labour and Employment is dated 1-5-1969 whereas the Workshop has been registered under the Factories Act with effect from 19-11-1988 and, therefore, it ceases to be mines and any registration under the Mines Act becomes redundant; that in addition, the Deputy Director, Industrial Health and Safety, Bilaspur, under letter dated 6-3-1995, has mentioned that the workshop at Korba is not covered under Mines Act. She emphasized that factory, under Factories Act, does not include a mine subject to the operation of the Mines Act; that this exclusion clause clearly supports the case of the Department that the workshop is not a mine; that the Commissioner has rightly distinguished the Tribunal's decision in Central Coalfields' case, supra, by giving his findings that the workshop in that case was not registered under the Factories Act.
5. We have considered the submission of both the sides. The issue involved in the present appeals stands decided by the Tribunal in Appellants own case - South Eastern Coalfields Ltd. v. C.C.E. Raipur, 2001 (127) E.L.T. 554 (T). In para 5 of the said decision, this Tribunal has held under:
"5. We have considered the submission of both the sides. Notification No. 63/95-C.E., exempts the goods manufactured in workshop situated within the precincts of mines. It is not in dispute that the workshop at Korba is not situated within the premises of mines, The learned Consultant has relied upon the decision of the Tribunal in Central Coalfields' case in support of contention that precincts cannot be restricted to an area of four kilometre. In the said case the adjudicating authority himself has held the workshop to be the precinct of the nearest mine which was 4 Kms. The issue involved in that case was whether the exemption was available only in respect of the goods cleared from the workshop to the nearest mines or to all the mines situated at a distance of more than 4 kms from the workshop. The issue involved in the present matter before us is thus different from the Central Coalfields' case inasmuch as the exemption has been denied on the ground that the workshop was not mines as it was registered under the Factories Act. The Commissioner has given a categorical finding in the impugned Order that admittedly the Central Electrical and Mechanical Workshop, Korba, is registered under the Factories Act, 1948 and accordingly the exemption contained in Notification No. 63/95-C.E., cannot be extended to the goods manufactured in the said workshop. We do not find anything wrong in the finding of the Commissioner. As per Explanation (ii) to Notification No. 63/95-C.E., "mine" has the meaning assigned to it in Clause (i) of Section 2 of the Mines Act, 1952. It is not disputed by the Appellants that the workshop is registered as a factory under the Factories Act, 1948. As per Section 2(m) of the Factories Act, "factory means any premises including the precincts thereof.....but does not include a mine subject to the operation of the Mines Act, 1952....." In the light of specific exclusion of mine which is subject to the operation of Mines Act from the definition of factory, we do not find any substance in the submission of the learned Consultant that both Acts can apply to the same unit. Accordingly, we hold that the benefit of the Notification No. 63/95-C.E., is not available to the goods in question. The demand of excise duty as confirmed in the impugned order is upheld."
6. We also observe that the Tribunal while dealing with the case of Central Coalfields Ltd. was concerned with the Appeal No. E/SB/4083/93 arising out of Order-in-Original No. 29/MP/Collse/93, dated 29-3-93. As per Memorandum of Appeal, the said workshop was registered under the Factories Act on 8-3-96 and 22-2-97, that is, the said Workshop was not registered at the relevant time. All the present matters are thus squarely covered by the Tribunal's decision as reported in 2001 (127) E.L.T. 554 (T) and accordingly the demand of duty of excise is upheld. However, in view of the facts of the case, we are of the view that no penalty is imposable. This was the view in the decision reported in 2001 (127) E.L.T. 554 also. We, therefore, set aside all the penalties imposed on the Appellants.
All the appeals stand disposed of in above manner.