COMMISSIONER OF CENTRAL EXCISE Vs. INDIA CEMENTS LTD.

JUDGEMENT

(1.) THERE are four appeals in all and Appeals Bearing No. E/1392 and 1393/1998 are filed by the revenue and are directed against Order -in -Appeal No. 25 and 26/1998 (TRY) dated 17.3.98. Appeal bearing No. E/1659/98 is preferred by M/s. India Cements Ltd. against Order -in -Appeal No. 25 and 26/1998 (TRY) dated 17.3.98 and another appeal Bearing No. E/415/2003 is also preferred by M/s. India Cements Ltd. against Order -in -Appeal No. 139/2003 (SCN) (TRY -II) dated 10.3.2003 passed by the Commissioner (Appeals) Trichy, since the issue involved in all the four appeals are common and relate to the same appellant -assessee, all the four appeals are taken up together for disposal as per law.

(2.) THE facts in brief are M/s. India Cements Ltd. Dalavoi (The Respondents in Appeal Nos. E/1392 and 1393/1998 and the appellants in Appeal Nos. E/1659/98 and E/415/2003) are manufacturers of cement falling under Chapter 25 of the CETA, 1985 and have been availing the credit of duty under Rule 57A/57Q of the CE Rules, 1944 (as they existed at the material time). In respect of certain credits of duty availed on capital goods under Rule 57Q during the period from 8/1995 to 3/1996, proceedings were initiated against the appellant -company, orders were passed by the adjudicating authority by allowing certain credit and disallowed the rest. On appeal, the Commissioner (Appeals) decided the issues vide Order -in -Appeal No. 25 and 26/1998 (TRY) dated 17.3.98 and 139/2003 (SCN) (TRY -II) dated 10.3.2003 resulting in further appeals by both the appellant -company and the revenue. Commissioner (Appeals) vide Order -in -Appeal No. 25 and 26/1998 (TRY) dated 17.3.98 allowed the credit on Bull Dozer as material handling equipment to the tune of Rs. 6,60,000 and revenue has come in appeal against this portion of the order passed by the Commissioner (Appeals) vide Appeal No. E/1392/1998. Similarly Commissioner (Appeals) has also allowed modvat credit on Loader to the tune of Rs. 1,95,300 as material handling equipment and revenue has come in appeal vide Appeal No. E/1393/1998. Whereas the Appellant vide Appeal No. 1659/1998 have come in appeal against the denial of modvat credit to the tune of Rs. 42,61,239 on cement, rebar coils, CTD Bars and TOR steel on the ground that these items were considered as used for civil construction. Similarly the appellant -company has come in appeal vide Appeal No, E/415/2003 against the Order -in -Appeal No. 139/2003 (SCN) (TRY -II) dated 10.3.2003 by which modvat credit to the tune of Rs. 51,20,140 has been denied on rebar coils, cement, joists and TOR steel as these items were considered as used for civil constructions.

(3.) APPEARING on behalf of the revenue, Ld. DR Shri A. Jayachandran reiterated the ground in the revenue appeals and brought to our notice para 2 and 4 of the impugned Order -in -Appeal No. 25 and 26/1998 (TRY) dated 17.3.98. It was contended by the DR that Bull Dozer and Loader are entitled to the credit of duty if and only if they are used within the factory but in the present case the facts clearly confirmed that these two items are used only in mines. It was submitted that in view of the facts on record, the Bull Dozer and Loader do not satisfy the explanation of the definition of capital goods under Rule 57Q and therefore not eligible for credit of duty. The Ld. DR cited the Apex Court judgment in the case of Jaypee Rewa Cements v. CCE 2001 (133) ELT 3 (SC) in support of his submissions. Ld. DR therefore prayed that the impugned order may be set aside so far as it related to extending of credit of duty to Bull Dozer and Loader.