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TMI Blog2005 (12) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... stone from their mines to the factory premises. 3.The Assessing Officer as well as the Commissioner, Central Excise (Appeals) decided against the appellant and passed an order withdrawing the Modvat credit availed by the assessee on the aforesaid items. Before the Tribunal while the Revenue relied on the observations made by the Supreme Court in Jaypee Rewa Cement v. Commissioner of Central Excise, M.P. - 2001 (133) E.L.T. 3 (S.C.), the assessee contended after putting the plan which shows the factory, the mining area and the crusher, including the conveyor belt connecting the crusher within the factory, that the land on which the conveyor belt has been installed is the property of the assessee and is connected to and is part of the factory; that all these items are installed in an area which is adjacent to the factory i.e., in an area which can be called as precincts of the factory in terms of Section 2(e) of the Central Excise Act, 1994 and are being used in connection with the manufacture of final product. Thus, they are eligible for Modvat credit under Rule 57Q. The assessee relied on the decision of the Tribunal in case of C.C.E., Chennai v. Pepsico India Holdings Ltd. - 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocess in the manufacture of final goods? 6. Whether the process of mining limestone in captive mines undertaken by cement factory can be considered as integral to the process of manufacture of cement, more particularly in view of the fact that mining area lying adjacent to the cement factory area is also nothing but a part of factory area? 7. Whether it can be said that Hon'ble Supreme Court has in Jay Pee Rewa's case disallowed Modvat credit on capital goods used in mines? 8. Whether the Tribunal was right in disallowing Modvat credit on the basis of judgment of the apex court in Jay Pee Rewa's case more particularly when in the present case capital goods in question were used at crusher and conveyor belt and not at all in the mining area? 9. Whether the Tribunal was bound to allow Modvat credit in question on the basis of its earlier judgment allowing such credit on capital goods used in mines and/or at place outside the factory area? 10. Whether in the facts and circumstances of the present case, more particularly in view of the fact that the mining area as well as crusher and conveyor belt area also falls within the site plan of the factory area, the Tribunal was right in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court in Birla Corporation Ltd's case (supra) has held that rope way installed for transporting raw material from the mines to the factory premises and that duty paid on spares of rope way used for transporting of raw material from the mines to the factory premises are eligible for availing the Modvat credit. The Supreme Court noticed that identical issue came up for consideration before the CEGAT in J.K. Udaipur Udyog Ltd. v. CCE - 2002 (147) E.L.T. 996 and in that case the Tribunal held, following the principles laid down in Pepsico India Holdings Ltd., that the assessee was entitled to the Modvat credit. The Supreme Court also noticed that the said decision of CEGAT was accepted by the Department and on that basis the appeal filed in J.K. Udaipur Udyog also came to be dismissed as not pressed. The Supreme Court held that in the instant case the same question arises for consideration under the almost identical facts and therefore, the revenue cannot be permitted to take different stand in respect of the same subject matter at different times in respect of different assessees. 12.On the other hand, the learned counsel for the Revenue urged that mines are not part of the factor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of lime stone excavated was crushed at the mine site and the crushed lime stone was transported to factory for manufacturing. The Revenue has urged that since the rope ways are not installed in the factory, therefore, they cannot be treated as capital goods eligible for Modvat credit. The Tribunal relying on Pepsico India Holdings Ltd.'s case in which capital goods employed for the purpose of drawing water from the well situated away from factory premises and brought to the factory by transportation for use therein were held to be eligible for Modvat credit accepted the claim of J.K. Udaipur Udyog's in respect of aforesaid capital goods installed at the mines site for transporting the crushed lime stone to the factory site through connecting ropeways. The judgment of the Pepsico India Holdings Ltd. was accepted by the department vide letter dated 5th June, 2003 which was placed before the Supreme Court in which it was stated that the case of C.C.E., Chennai v. Pepsico India Holdings Ltd. 2001 (42) RLT 800, Final Order No. 1581/2000, dated 27-10-2000 in Appeal No. E/2603/1998/MAS has been accepted as reported by Chief Commissioner, Central Excise, Chennai vide his letter C. No. IV/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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