Customs, Excise and Gold Tribunal - Tamil Nadu
M/S The India Cements Ltd. And M/S Kcp ... vs Commissioner Of Central Excise, Guntur on 17 August, 2001
Equivalent citations: 2000ECR345(TRI.-CHENNAI)
ORDER
Shri Jeet Ram Kait
1. As the issue is common in all these appeals, hence the stay application & appeals are taken up together for disposal as per law.
2. Ld.Consultant Shri Chidananda Rao submits that Ld.Commissioner (Appeals), Hyderabad had rejected the modvat credit in respect of capital goods used in mines. As regards other items used in the factory, the Commissioner remanded the cases to the adjudicating authority as the adjudicating authority did not give any finding on the admissibility of modvat credit on the disputed items used in the factory. Appellants, further submit that Ld.Commissioner (Appeals) Hyderabad rejected the modvat credit on capital goods used in mines in the light of the Larger Bench judgment of the Tribunal in the case of JEYPEE REWA CEMENTS Vs CCE Raipur reported in 2000 (38) RLT 111 (CEGAT-LB) and MADRAS CEMENTS Vs CCE Hyderabad - 1998 (99) ELT 395. They have further submitted that though the Hon'ble Larger bench of the Tribunal has held that explosives are not eligible for credit under Rule 57A in the case of Jeypee Rewa Cement Vs CCE Raipur (supra), the matter relating to modvat credit on explosives has been referred to the jurisdictional High Court in the following cases:-
1. CCE Guntur Vs MADRAS CEMENTS - 2000 (116) elt 542 (T) HIGH COURT OF A.P.
2. CCE Raipur Vs JEYPEE REWA CEMENTS - 2000 (122) ELT 86 - HIGH COURT OF M.P.
3. CCE Jaipur Vs J.K. UDAIPUR UDYOG LTD. - 2000 (123) ELT 895 - HIGH COURT OF RAJASTHAN.
3. They have stated that in the following cases the Hon'ble Supreme Court has admitted their appeal on the modvat credit on explosives:-
1. CCE Jaipur Vs ACC LTD - 2001 (129) ELT A 192.
2. CCE Vs DIAMOND CEMENTS - 2001 (129) ELT A 196.
He has also stated that the South Zonal Bench has referred the question of eligibility of modvat credit on capital goods to the Hon'ble High Court of Andhra Pradesh in the case of PANYAM CEMENTS & MINERALS INDUS. Vs CCE Hyderabad - 2000 (116) 544. They have, therefore, prayed that as the matter relating to modvat credit on capital goods used in the mines is pending before the High Court of Andhra Pradesh in reference, the Bench may kindly order waiver of pre-deposit & stay of recovery of the amounts and appeal be kept pending till the Hon'ble Court decides on the reference application cited above.
4. Heard Ld.DR who has stated that the matter is no longer res integra and the issue has been decided by the Larger Bench decision of the Tribunal in the case of JAYPEE REWA CEMENTS Vs CCE Raipur 2000 (38) ELT 111 (CEGAT-LB) and the MADRAS CEMENTS Vs CCE Hyderabad, 1998 (98) ELT 395 (supra). He submits that since capital goods are used out side the factory area and since mines are governed under the Mines Act, no modvat credit can be granted on capital goods which are used in mines in the light of the above decision. Shri V. Ramakrishnan, DR, therefore, request that stay and appeal may be decided as the issue is already covered by the Larger Bench judgment in the case of JEYPEE REWA CEMENTS Vs CCE Raipur-2000 (38) RLT 111 (CEGAT-LB) and MADRAS CEMENTS Vs CCE Hyderabad - 1998 (99) ELT 39.
5. Heard both sides. The issue is no longer res integra and the Larger Bench in the case of JEYPEE REWA CEMENTS Vs CCE Raipur and MADRAS CEMENTS Vs CCE Hyderabad (supra) have already decided that explosives used in the mines for excavating quarry are not entitled for modvat credit since they are not used in the factory in or in relation to the manufacture of final product. Since explosives are used in mines, the Larger Bench held that explosives used in mines which are governed under the Mines Act are not entitled for modvat credit. Similarly, the capital goods which are used in mines, no modvat credit can be given to them in the light of the larger decision of the Tribunal in the case of JEYPEE REWA CEMENTS Vs CCE Raipur (supra) and MADRAS CEMENTS Vs CCE Hyderabad (supra). We do not feel that this appeal could be kept pending till the decision of the reference application by the Hon'ble High Court of Andhra Pradesh. We, therefore, reject the stay application and the appeals, after respectfully following the ratio of the judgments mentioned supra. Ordered accordingly.
(Pronounced & dictated in open court)