2015 (9) TMI 1391 - AT - Central Excise

Denial of modvat credit - penalty under erstwhile Rule 57U(6) read with 173Q(bb) of CER - Held that - TN Govt had granted mining lease in favour of the respondent for the period of 30 years and 20 years respectively subject to fulfilment of various conditions as set out in the G.O itself and also subject to the payment of royalty and other rents etc. In terms of above G.O s, appellants have executed lease deed dated 17.6.95 and 5.3.92. On perusal of the lease deed, I find that the rights, liabilities, restrictions of use of mines and the mode of payment are set out in the agreement. Therefore, it is clearly established beyond doubt that respondents had captive mining lease during the relevant period from 8.5.1991 onwards - appellants availed the credit on lubricating oils for the use in the manufacture at their captive mines and by following the ratio of the Hon ble Supreme Court in the case of Vikram Cement Vs CCE (2006 (2) TMI 1 - Supreme court), the appellants are eligible for cenvat credit on capital goods and at captive mines. Accordingly, the impugned order is upheld and Revenue appeal is rejected subject to the condition that mining products in dispute are not cleared to outsiders which may be verified by the Revenue - Decided against Revenue.

Summary

Issues:
1. Denial of modvat credit on lubricating oil used outside the factory area under rule 57Q of Central Excise Rules.
2. Dispute over ownership of captive mines and admissibility of capital goods credit.
3. Verification of whether mining products were supplied to other cement companies or outsiders.

Analysis:
1. The case involved the denial of modvat credit on lubricating oil used outside the factory area under rule 57Q of Central Excise Rules. The adjudicating authority confirmed the demand, but the Commissioner (Appeals) set aside the order and allowed the appeal. The Department appealed to the Tribunal, which initially dismissed the appeal, leading to a subsequent appeal by the Revenue to the Hon'ble High Court of Madras.

2. The dispute centered around the ownership of captive mines and the admissibility of capital goods credit. The Department argued that the respondent did not own any captive mines as they had only leased mines from the Tamil Nadu Government. The High Court remanded the matter back to the Tribunal for reconsideration, emphasizing the lack of evidence supporting the mines being captive and the exclusive use of mined products by the respondent.

3. The issue of whether mining products were supplied to other cement companies or outsiders was also addressed. The respondent provided Government Orders and lease agreements showing that the Tamil Nadu Government owned the mining sites and had granted leases to the respondent. The Tribunal found that the mining products were captively consumed in the manufacture of cement, and based on the evidence presented, upheld the eligibility of the respondent for cenvat credit on capital goods used at captive mines.

In conclusion, the Tribunal confirmed the eligibility of the respondent for cenvat credit on capital goods used at captive mines, based on the ownership of the mining sites and the captive consumption of mined products in cement manufacturing. The appeal by the Revenue was rejected, subject to verification by the Revenue that the mining products in dispute were not cleared to outsiders.