Corporation Ltd. Vs. Commnr. of Central Excise  Insc 368 (26 July 2005)
Singh & S.H. Kapadia B.P.Singh, J.
short question involved in this appeal is whether the duty paid on spares of
ropeway used for the purpose of transporting the crushed limestone from the
mines located 4.2 kms. away to the factory, is entitled to Modvat credit.
Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi (for short
'CEGAT') by its impugned order of 25th March, 2003 disallowed the Modvat credit
on the ground that the ropeway transports raw material from the mines to the
factory premises and is not a material handling equipment within the factory
premises. It is not disputed before us that the crushed lime stone is brought
from the mines to the factory premises where it is deposited utilising the
ropeway as a means of transportation.
identical issue came up for consideration before the CEGAT, in J.K.Udaipur Udyog
assessee was entitled to the Modvat credit. The Commissioner of Central Excise
came up in appeal before this Court in Civil Appeal No.1129/2003 impugning the
aforesaid decision of the CEGAT.
by order dated July 10,
2003 the appeal was
dismissed in view of the fact that the learned Attorney General appearing for
the Commissioner of Central Excise stated that he did not wish to press the
appeal in view of the letter of the Department dated 5th June, 2003. The aforesaid letter reads as
refer to your office letter, dated 2nd May 03 on the above cited subject. In
this connection it is to inform you that case of 2001(42) RLT 800, Final order
No.1581/2000 dated 27.10.2000 in appeal No.E/2603/1998/MAS has been accepted as
reported by Chief Commissioner Central Excise Chennai vide his letter
C.No.IV/16/16/2003-CZO dated 3-6-03." In these circumstances, this Court
dismissed the appeal.
counsel appearing on behalf of the appellant submitted before us that there are
several decisions of the tribunal which have followed the principles laid down
in J.K. Udaipur Udyog Ltd. and Pepsico India Holdings Ltd. (supra) and the law
is now well settled.
instant case the same question arises for consideration and the facts are
almost identical. We cannot permit the Revenue to take a different stand in
this case. The earlier appeal involving identical issue was not pressed and was
therefore, dismissed. The respondent having taken a conscious decision to
accept the principles laid down in Pepsico India Holdings Ltd.(supra) cannot be
permitted to take the opposite stand in this case. If we were to permit them to
do so, the law will be in a state of confusion and will place the authorities
as well as the assessees in a quandary.
therefore, allow this appeal and hold that Modvat credit is available to the
appellant in the facts and circumstances of the case. This appeal is
accordingly allowed. The order of the CEGAT is set aside.
In view of the judgment and order passed in Civil Appeal No.5118 of 2003, this
appeal is allowed in the same terms.
APPEAL NO.4526/2005 [Arising out of SLP(C)No.737/2004] Special leave granted.
counsel for the parties.
appeal is squarely covered by our judgment and order pronounced today in M/s.
in the aforesaid appeal, the appeal of the appellants herein was dismissed by
view of the fact that we have today allowed the appeal of M/s. Birla
Corporation Ltd. in Civil Appeal No.5118/2003, this appeal is also allowed and
it is held that the appellant is entitled to the Modvat credit claimed before
APPEAL NO.4527/2005 [Arising out of SLP(C)No.3196/2004] Special leave granted.
counsel for the parties.
case is squarely covered by our judgment and order in Birla Corporation Ltd. in
Civil Appeal No. 5118 of 2003 pronounced today. Following the judgment impugned
in the aforesaid appeal, the CEGAT had dismissed the appeal of the Appellant
herein. This Court having allowed the appeal preferred by M/s. Birla
Corporation Ltd., this appeal must also be allowed.
this appeal is allowed. The judgment and order of the CEGAT is set aside and it
is held that the appellant herein is entitled to Modvat credit claimed before
the CEGAT in respect of the ropeways and spare parts thereof.