Customs, Excise and Gold Tribunal - Tamil Nadu
India Cements vs Cce on 17 February, 2005
ORDER P.G. Chacko, Member (J)
1. In these applications, the respondents state that there are two apparent errors in Final Order Nos. 908-910/2004 - 2004 (117) ECR 556 (T) dated 18.10.2004 passed by this Bench in the captioned appeals. It is pointed out that the original authority had denied Modvat credit of Rs. 9,99,681/- to the respondents in respect of rails Heading No. 73.02 of CETA Schedule which were used for laying of railway tracks for movement of wagons which were in turn used for bringing coal and gypsum to their cement factory. The Tribunal erroneously noted that the above credit was denied to the respondents by the original authority in respect of 'point attack picks'. It is further pointed out that on account of this mistake the question whether the above credit was admissible to the respondents in respect of rails was not examined. The appellants pray for rectification of this mistake.
2. After hearing both sides and considering their submissions, I find that the above mistake pointed out by the appellants is apparent from the record inasmuch as the credit of Rs. 9,99,681/-, which was actually taken on rails, was treated as having been taken on 'point attack picks' and consequently the question of admissibility of Modvat credit on rails went unanswered. This mistake has got to be rectified.
3. The second "mistake" pointed out by the appellants in these applications is that a finding was erroneously recorded in the above final order to the effect that there was no evidence on record to prove the respondents' claim that their mines were within the factory precinets as per the approved ground plan. According to the appellants, even though the ground plan was not available on record, the order of the original authority available on record had examined the question whether the mines were comprised in the factory area covered by the approved ground plan. According to the appellants, this question ought to have been remanded to the original authority in the same way as the Division Bench did in their own case as per Final Order No. 404-407/2004 dated 14.5.2004. Ld. Counsel for the appellants has also forcefully contended that the omission to remand the question to the original authority was a patent mistake.
4. Ld. SDR has referred to the relevant order of the original authority and has submitted that there is nothing in this order to indicate that the original authority had occasion to consider factory ground plan. On the other hand, it was contended in the relevant appeal of the Revenue that mining activity was a separate activity under the Mines Act, which was distinct from the activity of manufacture of cement in the cement factory under the Factories Act and that only that area where the latter activity was undertaken was covered by the Central Licence. In this connection, ld. SDR submits, reliance was placed on the Tribunal's decision in Madras Cements v. CCE . On a careful scrutiny of the records, I find that this submission of the SDR is factually correct. The relevant Order-in-Original passed by the Assistant Commissioner did not indicate that he was called upon to examine the question whether the lime stone mines of the respondents were comprised in the ground plan of their cement factory. The original authority held that the mine are a could not be construed as factory and that the equipments used in the mine area were not eligible capital goods under Rule 57Q. A certain clause used by the Assistant Commissioner in the relevant context in his order is noteworthy. This clause reads "even if it is admitted for argument sake that factory includes mines". It is apparent from this expression that the assessee had not relied on any ground plan of the cement factory for substantiating any claim that the factory included the mines. On the other hand, in the relevant appeal, the Revenue raised a clear contention that the factory are was separate from the mine are and that the mining activity had nothing to do with the licensed activity of manufacture of cement, for Modvat purposes. The appellants have not shown that, on the question whether the mining area was within the factory as per the approved ground plan, there was documentary evidence on record when the final order was passed. They have not shown any mistake apparent form the record, in this connection. Ld. Counsel has referred to Final Order Nos. 404-407/2004 dated 14.5.2004 passed by the Division Bench in the respondent's case. I have perused this final order and I find that, on the basis of the records of that case, the Division Bench remanded to the original authority the question whether the bulldozer used in the mines were eligible for capital goods credit. This final order indicates that, in the order impugned before the Tribunal, there was no finding on the question whether the mines had been included in the ground plan of the cement factory approved by the department. Apparently it is for this reason that the question was remanded to the original authority.
5. Ld. SDR has sought to support the view taken by this Bench on the question whether the equipments used in off-factory mines were eligible capital goods for Modvat credit, on the strength of the Supreme Court's recent decision in the case of CCE v. J.K.Udaipur Udyog Ltd. , wherein lime stone mines, situated not far away from the cement factory of the respondents, were held not to be part of the factory as no manufacturing activity was undertaken in these mines. The Supreme Court's Judgment cited by Id. SDR was not part of the record when the final order was passed by this Bench. Hence the present applications cannot be opposed on the strength of the Supreme Court's Judgment in J.K. Udaipur Udyog (supra).
6. For the reasons noted above, I find that there is only one mistake, pointed out by the appellants, which requires to be rectified. The final order is accordingly amended as follows"
(a) The 2nd sentence in para 1 of the final order shall be substituted by the following sentence: "The original authority had denied Modvat credits of Rs. 2,00,252/- and Rs. 3,24,257/- in respect of point attack picks and Rs. 9,99,681/- in respect of rails, to the respondents for the period March 2000, July-September 1999 and May 1998 respectively on the ground that the said goods had not been used within the factory of production of cement as required under Rule 57Q of Central Excise Rules, 1944.
(b) Between the 4th and 5th sentences of para 2 of the final order, the following sentences shall be inserted: "As regards rails, Id. Counsel submits that the same were used for laying of railway track for wagons which were in turn used for transporting coal and gypsum raw materials for cement to the cement factory and therefore the said item should be held to have been used for the manufacture of cement. In this connection, it is also submitted that the site of the railway track was within the factory precinets as per the approved ground plan and hence Mdovat credit on the rails used for laying the railway track was not be denied on the ground that the reils were used outside the factory.
(c) After the 1st sentence in para 3 of the final order, the following sentence shall be inserted "The railway was also admittedly used for transporting coal and gypsum to the cement factory. It was tacitly conceded that the railway track fabricated from the rails lay outside the cement factory. In the 2nd sentence of para 3, commencing with the word 'though' and ending with the word 'claim', the words "and railway track" shall be inserted after the word 'mines'.
(d) In the 3rd sentence beginning with the word 'as' and ending with the word 'plan', the words "and the railway track" shall be inserted between the word 'mines' and word 'where'.
7. The final order shall be read as amended above. The 'rectification of mistake' applications are allowed in part.
(Dictated and pronounced in open Court).