INDIA CEMENTS AND ZUARI Vs. CCE

JUDGEMENT

(1.) ALL these four appeals and stay application are taken up together for disposal as per law, as the issue lies in a short compass. The Commissioner has dismissed the appeals by holding that appellants were not entitled to Modvat credit on explosives used for excavation the lime stone in the mines situated outside the factory. He has noted that the issue is covered by the judgment of 5 Member judgment of the Tribunal rendered in the case of M/s Jaypee Rewa Cements, Rewa Vs. CCE Raipur [2000 (38) RLT 1111/CEGAT -L.B.] wherein it has been held as under:

(2.) LD . Consultant Shri Chidananda Rao submits that the issue has been admitted in the Apex Court and the matter is also under Reference before the respective High Courts. Therefore, he seeks for grant of waiver, or in the alternative, put them on condition of 50% pre deposit so that the matter can be kept pending till such time as the Apex Court or the Reference matter is decided by the respective High Courts. He also submits that Commissioner ought to have heard them in the matter before deciding the issue ex parte and it is violate of principles of natural justice.

(3.) LD . DR. Shri S. Kannan submits that the issue has been fully decided by the Larger Bench of Five Members of the Tribunal holding that Modvat credit cannot be extended to explosives used in excavation the limestone in the mines situated outside the factory. He further points out that a similar view has been taken with regard to the dumpers which have been used outside the factory in the case of Madras Cements Ltd. [1998 (99) ELT 395 -Trib.]. Therefore, any item which is used outside the factory cannot be eligible to the benefit of Modvat credit and the issue being fully settled, cannot be challenged on the grounds raised by the Ld. Consultant. He submits that the appeals are required to be dismissed by following the ratio and no better purpose would be served in granting waiver or keeping the matter pending. He submits that once the issue is decided in the Revenue's favour,.question of even granting waiver of pre deposit does not arise and the order of the Tribunal is binding on all Coordinate benches.