9911796707
TMI Blog2005 (7) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... n take up the other issues later. 2. It is well known, that limestone is an important raw material for the manufacture of Cement. Limestone is extracted from mines. In order to extract limestone from the mines, Capital Goods are required. Normally, the mines are situated away from the cement factories. In certain cases they are contiguous, and connected by private/public road to the cement factory. The common issue before us is whether the capital goods used in the mines are entitled for CENVAT Credit under the relevant Rules. 3. The names of the Advocates who represented the respective parties are given above. Shri Ganesh Havanur, learned SDR represented the Revenue. 4. Shri V. Sridharan, learned Advocate appearing for M/s. Ultra Tech Cemco. Ltd., adduced the following arguments; (i) If it is accepted that the area where the mines are situated would come within the ambit of the definition of 'Factory' as per Section 2(e) of the Central Excise Act, 1944, then the parties have a strong case. (ii) The decision of the Honourable Apex Court in the case of Commissioner of Central Excise, Jaipur v. J.K. Udaipur Udyog Ltd. [2004 (171) E.L.T. 289 (S.C.)] is disting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uctions, wherein there is provision for single registration in respect of separate premises under certain circumstances. Separate premises where the premises are actually part of the same factory, (where processes are inter-linked), but are segregated by public road, canal or railway-line. The fact that the two premises are part of the same factory will be decided by the Commissioner of Central Excise based on certain factors. (vii) The learned Advocate further submitted that in the present case, the mines are to be treated as a single factory for the following reasons; (a) Limestone is mined and crushed in the mines. The limestone is the basic raw material for the manufacture of cement; (b) The mines and factory are situated adjacent to each other, and on a continuous stretch of land; (c) There is no public road, canal, railway line etc. separate the factory from the mines; (d) The mines are owned by the appellants; (e) The labour, workers, staff employed in the mines are employees of the appellants and are in the pay-roll of the appellants. Such staff/workers are treated at par with other staff/workers employed. (viii) Fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated the grounds of appeal. Shri M.S. Srinivasa, learned advocate said that the mines are adjacent to the factory and they should be treated as part of factory under Section 2(e) of the CE Act, 1944. 8. We have gone through the records of the case carefully. The learned Advocates in all these cases, before us want to make a point that the mines are part of the factory as per the definition in Section 2(e) of the Central Excise Act, 1944. In the case of M/s. Ultra Tech Cemco. Ltd., the mines are connected to the factory by a private road. In the other two cases, the mining area is contiguous. The parties have also submitted that the mining area also has been registered by the Central Excise department along with the registration of the factory. The instructions in the departmental manual has also been relied on, where more than one premises have been given a single registration. We have considered all the submissions very carefully. In this connection, we find that whether the mines should be treated as part of the cement factory has been examined in depth by the Hon'ble Supreme Court in the case of CCE v. J.K. Udaipur Udyog Ltd. We would like to reproduce para 10 of the order; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actory' as per Section 2(e) of Central Excise Act, 1944, even if they are contiguous and given Central Excise Registration along with the factory. In other words, mines cannot be considered as part of the Factory. 10. The following other issue have been raised in the Appeal of M/s. UltraTech CemCo. Ltd. Even though these points were not argued before us during the hearing, as written submissions were filed in this case, the same are considered and decided on merits. Restriction of Credit to 75% 11. The Appellant submitted that the capital goods classified under Heading 98.01 of the Customs Tariff were received into the factory during the year 1996 itself. But the provisions of Rule 57Q(3), which restricted the credit to 75% were effective only from 1-3-1997. Hence, for the Capital Goods received prior to 1-3-97, the restriction cannot be applied. He relied on the following case laws. (a) CCE v. Raj Cement - 2003 (159) E.L.T. 302 (b) Binani Cement Ltd v. CCE - 2002 (143) E.L.T. 577 (c) Commissioner v. PMP Textile Mills Ltd - 1999 (108) E.L.T. 698 (d) Commissioner v. Sengunthar Spng. Mills - 1998 (99) E.L.T. 409 We find that the appellant' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2002 (144) E.L.T. 561. We therefore set aside the order of the Commissioner (Appeals) and allow the credit on this point. 16. As regards credit taken on Xerox/original copy of duty paying documents, we find that the issue is against the appellants in view of the larger bench decision in the case of M/s. Avis Electronics Ltd. - 2000 (117) E.L.T. 571, wherein it is held that "a manufacturer could take credit only on the basis of duplicate copy of the invoice and where the duplicate copy has been lost in transit, he could take credit on the basis of the original copy of the invoice provided he satisfies the Assistant Collector about the loss of the duplicate copy". Therefore, respectfully following the same, we uphold the order of the Commissioner (Appeals) on this point. 17. Summing up 1. We hold that "mines" do not form part of "cement factories" even if they are contiguous. Hence 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 in the light of the decisions as per Para 11 to 16 supra. The issue in Para 12 is remanded to the Original authority. 3. Departm ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
