2002 (4) TMI 344

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..... he big boulders from the mines to the crushers. During March, 1996, the appellants took Modvat credit of Rs. 56,100/- on the dumper tyres under Rule 57Q. The department, by show cause notice, proposed to disallow this credit on the ground that the dumper tyres were not eligible capital goods under the said rule. The proposal was contested by the party. In adjudication of the dispute, the Jurisdictional Assistant Commissioner denied the above credit to the assessee and imposed on them a penalty of Rs. 10.000/-, after recording a finding that the dumpers were not used in the factory of production of cement and, for that reason, the dumper tyres did not qualify to be capital goods under Rule 57Q. This decision of the Assistant Commissioner was .....

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..... view of the fact that the dispute between them and the department involved interpretation of the provisions of Rule 57Q, there is no room for imposing any penalty in this case. 3. Ld. JDR, Shri S.C. Pushkarna reiterates the findings of the authorities below. 4. Examined the submissions. It appears that, in their reply to the show cause notice as well as in their appeal preferred to the Commissioner (Appeals), the assessee had taken a definite stand that the dumpers were used both within the factory and outside it. The authorities below have found that the dumpers were used for transporting limestone boulders from the mines to the crushers which were found to be located outside the factory premises. They have, therefore, held tha .....

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..... is about the location of the crushers. If the crushers were also located beyond the factory limits with reference to the approved plan of the factory, then the dumpers should be held to be located beyond such limits, in which event the benefit of capital goods credit would not be available to the dumper tyres. If, on the other hand, it be found that the crushers were located within the factory limits with reference to the approved plan of the factory, then the dumpers would be held to have been used for transferring raw material into the "factory as defined under Section 2(c). These subtle facts require to be ascertained at the adjudicatory level for which purpose the matter will stand remanded. As regards the case law cited by ld. Advocat .....

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