Customs, Excise and Gold Tribunal - Hyderabad
Kcp Ltd. vs Cce on 17 August, 2001
Equivalent citations: 2001(99)ECR347(TRI.-HYDERABAD)
ORDER S.L. Peeran, Member (J)
1. This appeal arises from Order-in-Appeal No. 96/2000-CE dated 22.9.2000 by which the Commissioner has applied the Larger Bench judgement of Five Members rendered in the case of Jaypee Rewa Cements reported in 2000 (38) RLT 111 (CEGAT-LB) and that of Madras Cements v. CCE, Hyderabad and has rejected the appeal on the ground that capital goods listed in the show cause notice were used in the mines and not in the factory.
2 Ld. Consultant appearing for appellants submits that SCN did not speak about the term "used in mines and not in the factory" and the order is beyond the SCN.
3. Ld. DR points out that the issue was as to whether the capital goods were eligible for Modvat credit. He submits that the issue has been decided against the assessee. In the show cause notice, it has clearly stated that goods cannot be treated as capital goods, is suffieient to cover the cited judgements.
4. On a careful consideration of the submission, I agree with the DR's submission that the issue is covered by the Larger Bench judgement. The show cause notice clearly spells out that the items cannot be treated as items used for production of final product. Now, it has been clearly down that those items were not even used in the factory and were used in mines. Therefore, there is no infirmity in the impugned order as admittedly the capital goods were never used in the factory. Therefore, appluing the ratio of Large Bench judgment in the case of Jaypee Rewa Cements (supra) and that of Madras Cements (supra), I reject the contention of the Consultant and uphold the order of the Commissioner (Appeals). Appeal is dismissed.
(Dictated & pronounced in open Court).