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TMI Blog2001 (5) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... mines. The appellants had been denied the Modvat credit in respect of explosive used in the mines which were outside the factory. The authorities took the view that the mining activity being outside the factory, Modvat credit cannot be extended to mining activity. In this regard, the Commissioner (Appeals) has relied on the Larger Bench judgment of 5-Members rendered in the case of M/s. Jaypee Rewa Cement, Rewa v. CCE, Raipur [2000 (119) E.L.T. 552 (Tri. - LB) = 2000 (38) RLT 1111 (CEGAT-LB)]. The relevant paragraph relied by him in para 6 of his order is extracted below :- 83/138 "6. I find that this issue has been extensively dealt with by the 5-Member Bench of the Hon'ble CEGAT in the case of M/s. Jaypee Rewa Cement, Rewa v. CCE, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o opportunity of hearing was granted which is again violative of principles of natural justice. He submits that the Tribunal has indeed disposed of the matter finally by the 5-Member judgment referred to but yet their right of hearing ought to have been granted. He also very fairly brings to the notice of this Bench the Final Order Nos. 567-570/2001, dated 25-4-2001 [2001 (135) E.L.T. 746 (Tribunal)] in respects of India Cements and Zuari Cements Ltd. wherein by applying the ratio of the Larger Bench judgment noted supra, the Tribunal dismissed the stay and the final appeal. He had made a submission that the matter was ceased in reference before the High Court of Andhra Pradesh, Madhya Pradesh and Rajasthan and matter could be kept pending. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . CCE, Raipur (supra). The ld. Consultant had made this very submission in the earlier appeal in the case of India Cements Ltd. where also the Commissioner had dismissed all the appeals by applying the ratio of the Larger Bench judgment. The Tribunal in para 4 have clearly recorded that appellants have not shown that the explosives were used within the factory and the fact of the explosives were used in the mine is an admitted one. The findings recorded in para 4 is noted below :- "4. On a careful consideration of the submission, we totally agree with the ld. SDR that the issue is fully decided by the Tribunal judgments of Larger Bench. In this particular case, the explosives have been used in mines located outside the factory. Once a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, by applying the ratio thereof, the stay applications and appeals are dismissed. 6. In the case of My Home Cement Industries Ltd., ld. Advocate, Shri V.J. Sankaran has sent a request for adjournment. We are not inclined to grant any adjournment as the issue is totally covered and no useful purpose will be served by adjourning the matter. The Larger Bench judgment of 5-Members in the case of Jaypee Rewa Cements, Rewa (supra) and the other cited judgments clearly applies to the facts of the case and this Bench is bound by these judgments in terms of judicial discipline. 7. The plea taken by ld. Consultant that the matter is ceased in Reference is not pertinent to the issue because there is no stay of the operation of the La ..... X X X X Extracts X X X X X X X X Extracts X X X X
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