COMMISSIONER OF CENTRAL EXCISE Vs. INDIA CEMENTS LTD

JUDGEMENT

(1.) CIVIL Miscellaneous Appeal filed under section 35G of the Central Excise Act, 1944 against the Final Order of the second respondent dated 25.11.2005 made in FO No.1501 of 2005.) This appeal is filed against the Final Order No.1501 of 2005 passed by the second respondent dated 25.11.2005 by formulating the following questions of law :

(2.) WHETHER the explosives used in the mines to extract lime stones for the purpose of manufacturing cement could be termed as inputs to avail Cenvat credit especially when such goods are not used within the premises of the factory or to the final product as contemplated under Rule 57Q of the Central Excise Rules?

(3.) WHETHER the CENVAT is available to the assessee even when the inputs are used outside the factory premises with reference to Rule 57-Q of the Central Excise Rules was originally considered by the Supreme Court in the case of Jaypee Rewa Cement v. Commissioner, 2001 (133) ELT 3 in favour of the assessee, wherein also it was held that the input even used outside the factory premises, the assessee was entitled to Modvat credit. However, the Supreme Court in the case of Commissioner v. J.K.Udaipur Udyog Ltd., 2004 (171) ELT 289 held that the decision in the case of Jaypee Rewa Cement, referred to supra, would not apply to the CENVAT Rules. That view was doubted in the case of Vikram Cement v. Commissioner of Central Excise, Civil Appeal No.1197 of 2005, by a co-ordinate Bench and the issue was referred to the larger Bench by framing a question thus :