MALABAR CEMENTS LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) The Petitioner is a company, of which the Government of Kerala is the major share holder, engaged in the business of manufacture of cement. For the purpose of obtaining raw materials for the cement factory, the Petitioner was granted a lease of some vested forest in Walayar, from where raw materials are mined and transported to the factory premises through a rope way, which raw materials are used in the factory. At the time of starting of the factory, the Petitioner was obliged to obtain a licence under Rule 174 of the Central Excise Rules, 1944, and get a site plan of their premises approved by the Central Excise Authority. The Petitioner would contend that at that time the Petitioner submitted a site plan including the factory, the mines and the rope way, which site plan was approved by the Respondents. Later on, a question arose in respect of availing of MODVAT credit in respect of cement factories, as to whether inputs used in the mines are also eligible for MODVAT credit. There was a further issue as to whether capital goods used in the mines also are eligible for MODVAT credit. These issues are no longer res integra in view of the decisions of the Supreme Court in Jaypee Rewa Cement v. Commissioner of Central Excise M.P., and Vikram Cement v. Commissioner of Central Excise Indore,, as per which the Supreme Court held, that irrespective of whether capital goods and other goods are used in the mines or in the factory, the same are eligible for MODVAT credit. As such, presently the Petitioner is not much concerned about the availability of MODVAT credit in respect of capital goods and other goods used in the mines and ropeway. But if in future, if the rules are amended, confining such relief only to either the factory premises or approved site plan, then a difficulty may arise for the Petitioner, if the approval of the original site plan is changed. Therefore, the Petitioner seeks to resolve a dispute as to whether the original site plan approved by the Central Excise Authorities for the Petitioner included the mines and ropeway also is liable to be changed by the Central Excise Authorities, which was done in the Petitioner s case, which is the purpose of this original petition.

(2.) When the issue settled by the Supreme Court in the above decisions were still at large, the issue arose in respect of the Petitioner themselves as to whether the original approved site plan included mines also. The Assistant Commissioner of Central Excise, Palakkad, considered the question by Ext.P4 Order wherein it was specifically stated thus:

(3.) The Petitioner seeks the following reliefs: