2002 (2) TMI 1321 - AT - Central Excise

Summary

Issues:
1. Denial of Modvat credit for capital goods not used within factory premises.
2. Confirmation of demand for duty on items used in mines.
3. Admissibility of Modvat credit for items used in limestone mines.
4. Reversal of Modvat credit during adjudication process.

Analysis:

Issue 1: Denial of Modvat credit for capital goods not used within factory premises
The Commissioner, in the impugned Order, denied Modvat credit for items used in limestone mines, not within the factory premises, on the basis that they were not used in the manufacture of cement. However, the Consultant for the appellants argued that the Supreme Court's decision in Jaypee Rewa Cement case held that explosives used in limestone mines for cement production are eligible for Modvat credit under Rule 57A. Citing various Supreme Court decisions, it was contended that items used in mines should be considered as used in the manufacture of cement. The Tribunal agreed with this argument, overturning the demand for duty on items used in mines.

Issue 2: Confirmation of demand for duty on items used in mines
The Commissioner confirmed the demand for duty on items used in mines, citing the reversal of a specific amount by the appellants during the adjudication process. The Consultant argued that the appellants never surrendered their claim for the reversed Modvat credit and that the mere reversal should not render the credit inadmissible, especially when the Commissioner acknowledged that the items were covered by the definition of capital goods. The Tribunal agreed with this argument and set aside the confirmation of duty demand on items used in mines.

Issue 3: Admissibility of Modvat credit for items used in limestone mines
The Tribunal relied on the Supreme Court's decision in Jaypee Rewa Cement case and other relevant judgments to establish that items used in limestone mines should be considered as used in the manufacture of cement, making them eligible for Modvat credit. By applying the principles laid down in the cited cases, the Tribunal held that the items used in mines cannot be deemed inadmissible as capital goods solely because they were used in mines and not within the cement factory premises.

Issue 4: Reversal of Modvat credit during adjudication process
Regarding the reversal of Modvat credit by the appellants during the adjudication process, the Tribunal found that the Commissioner's observation on the admissibility of credit for reversed amounts was not justified. Once the Commissioner had allowed credit for disputed capital goods, the Tribunal ruled that the Commissioner should not have confirmed the quantum of credit for the same goods that were reversed during the proceedings. Consequently, the Tribunal set aside the Commissioner's observation on the reversed credit amount.

In conclusion, the Tribunal allowed the appeal, overturning the demand for duty on items used in mines and addressing the admissibility of Modvat credit for items used in limestone mines, while also clarifying the treatment of reversed Modvat credit during the adjudication process.