2005 (7) TMI 270 - AT - Central Excise

Issues Involved:
1. Whether the capital goods used in the mines are entitled to CENVAT Credit under the relevant Rules.
2. Restriction of Credit to 75%.
3. Availment of credit on imported goods assessed under Heading 98.01.
4. Credit availed on non-production of duty-paying documents.
5. Credit for cables used outside the factory, technological structures, and GC sheets.
6. Credit for calcium silicate in blocks.
7. Credit for goods with declarations filed beyond three months under Rule 57T.
8. Credit taken on Xerox/original copy of duty-paying documents.

Issue-wise Detailed Analysis:

1. Capital Goods Used in Mines:
The common issue in all appeals was whether capital goods used in the mines qualify for CENVAT Credit. The tribunal noted that limestone, an essential raw material for cement, is extracted from mines often situated away from the cement factories. The appellants argued that the mines should be considered part of the factory under Section 2(e) of the Central Excise Act, 1944. They cited various cases and departmental instructions to support their claim. However, the tribunal referred to the Supreme Court's decision in CCE v. J.K. Udaipur Udyog Ltd., which held that mines do not qualify as part of the factory since no manufacturing process occurs there. Consequently, the tribunal ruled that capital goods/inputs used in mines are not entitled to CENVAT Credit, as mines cannot be considered part of the factory.

2. Restriction of Credit to 75%:
The appellant contended that the capital goods received in 1996 should not be subject to the 75% credit restriction imposed from 1-3-1997. The tribunal agreed, citing the case of CCE v. Raj Cement, and held that the restriction is not applicable to goods received before the effective date. Therefore, the tribunal set aside the Commissioner (Appeals)'s decision and allowed the appellant's contention.

3. Availment of Credit on Imported Goods Assessed under Heading 98.01:
The appellant argued that all goods imported under Customs Tariff Heading 98.01 are entitled to Modvat credit. The tribunal upheld the Commissioner's decision, stating that not all goods under this heading qualify for Modvat as Capital Goods, based on the nature of the goods.

4. Credit Availed on Non-production of Duty-paying Documents:
The Commissioner (Appeals) disallowed credit due to non-production of duty-paying documents. The appellants produced these documents before the tribunal, which remanded the matter to the original authority for examination and decision as per law.

5. Credit for Cables Used Outside the Factory, Technological Structures, and GC Sheets:
The tribunal upheld the Commissioner (Appeals)'s decision that these items are not entitled to credit as they are not used within the factory.

6. Credit for Calcium Silicate in Blocks:
The tribunal allowed credit for calcium silicate in blocks, referencing the High Court's judgment in Escorts Ltd. v. CCE, which was upheld by the Supreme Court.

7. Credit for Goods with Declarations Filed Beyond Three Months under Rule 57T:
The tribunal set aside the Commissioner (Appeals)'s order and allowed credit, citing the Tribunal's decision in JBM Tools Ltd. v. CCE, which supports the appellant's position.

8. Credit Taken on Xerox/Original Copy of Duty-paying Documents:
The tribunal upheld the Commissioner (Appeals)'s decision, following the larger bench decision in M/s. Avis Electronics Ltd., which requires the manufacturer to take credit only on the duplicate copy of the invoice or the original copy if the duplicate is lost and the loss is satisfactorily explained to the Assistant Collector.

Summing Up:
1. Mines do not form part of cement factories, and CENVAT credit on inputs/capital goods used in mines is not admissible.
2. Other points raised in appeals E/757/2002 & E/777/2002 are disposed of per the decisions in paragraphs 11 to 16. The issue in paragraph 12 is remanded to the original authority.
3. Departmental appeals E/8/2005 and E/126/2005 are allowed, setting aside OIA No. 106/2004 and OIA No. 28/2004.

(Pronounced in open Court on 5th July, 2005)

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