CCE Vs. INDIA CEMENTS LTD.

JUDGEMENT

(1.) These are Revenue's appeals against grant of capital goods credit to the respondents by the lower appellate authority in respect, of "Point Attack Picks". The original authority had denied Modvat credits of Rs. 2,00,252/ -, Rs. 9,99,681/ -and Rs. 3,24,757/ - to the respondents for the periods Mar. 2000, May, 1998 and July to Sept. 1999 respectively in respect of the above goods on the ground that the said goods hand not been used within the factory of production of cement as required under Rule 57Q of the Central Excise Rules, 1994. The assessee's appeals against the decision of the original authority were allowed by the Commissioner (Appeals). Hence the present appeals of the Revenue.

(2.) Heard both sides. The SDR representing the appellant reiterates the grounds of these appeals. The main ground is that capital goods used in mines situate outside the cement factory are not eligible for Modvat credit as held by the Supreme Court in para 22 of its judgment in the case of Jaypee Rewa Cement v. CCE . The respondents' Counsel submits the "Point Attack Picks" were used as components of "Surface Miner" for the excavation of Lime Stone for the purpose of manufacture of cement and that, as the mines were within the factory precints as per the approved plan of the factory, the said goods should be held to been used within the factory for the purpose of Rule 57Q. Counsel has relied on CCE, Trichy v. India Cements Ltd. F.O. No. 404 -407/2004 dated 14.5.2004 : 2004 (115) ECR 678 (T) passed by the Division Bench in the same assessee's case, wherein the admissibility of capital goods credit in respect of Bulldozer used in off -factory mines was remanded to the original authority. In the cited case, it also appears, it was argued but the assessee that the mines were part of the cement factory.

(3.) After carefully considering the submissions, I find that the "Point Attack Picks" were, admittedly, used in the Lime Stone mines. Though it has been claimed by their Counsel that the mines are within the factory precints as per the factory plan approved by the Department, there is no evidence available on record to prove this claim. As any factory plan approved by the Department should be in the assessee's possession, 5 the burden is on them to show that the mines where the capital goods in question were used during the material period are comprised in the approved plan. The respondents have not shown so. Therefore, I do not see any valid reason to remand the case to the original authority. The cited final order does not advance the respondents' case for a remand. It is also pertinent to note that the apex court's judgment in Jaypee Rewa Cement (Supra) cited by the DR was not considered by the Bench in Final Order dated 14.5.2004.