ORDER
S.L. Peeran, Member (J)
1. Respondents are manufacturer of Cement and Clinker. The basic ingredient necessary for the purpose of manufacture of Clinker and Cement is lime stone. Lime stone is quarried by the assessee from its own mines and intended only for the manufacture of cement in its own factory at Jayanthipuram. Lime stone is quarried by the respondents using (i) explosives and (ii) Ammonium Nitrate (prilled). They had filed declaration before the competent authority on 23-6-1987 in terms of Rule 57G of C.E. Rules read with 57A and Notification No. 177/86, dated 1-3-1986 to avail Modvat benefit by way of credit of duty paid on the above named inputs under Rule 57A .
2. The lower authority rejected their claim. However, the first appellate authority allowed the claim of the assessee. Therefore, the Revenue was aggrieved with the order and had filed an appeal challenging the grant of Modvat credit by the Commissioner (Appeals). The Tribunal referred the matter to Larger Bench and by Final Order No. 375/1992, dated 13-6-1995, the Larger Bench of the Tribunal allowed the Revenue’s appeal and held that assessees are not entitled to the Modvat credit in respect of the above named inputs.
3. Therefore the respondents/assessee in these Reference applications seek reference of the following questions to the High Court :-
“(1) Whether the ‘Mine’ used for excavation of limestone would fall within the definition of “Factory” as defined in Section 2 (e) of the Central Excise Act for claiming Modvat credit on inputs in respect of assessee manufacturing Cement as the final product ?
(2) Whether the process of manufacture of Cement can be said to commence from the stage of excavation of lime stone in the mine for the purpose of Section 2 (f) of the Central Excise Act, 1944? ”
4. Ld. Advocate submits that in another batch of appeals filed by them against Commissioner (Appeals) order denying them Modvat credit in respect of equipments used in Mines, same had been denied by Tribunal. Therefore, they had filed reference application which was also dismissed. Therefore, they moved the Hon’ble Andhra Pradesh High Court in Central Excise Ref. Case No.1/98 under Section 35G (3) of the C.E. Act to direct the Tribunal to refer the above questions to High Court. Ld. Advocate submits that in the present case also the inputs are used in the Mines and same questions arise for consideration and prays for reference of these questions also to the High Court as it has a bearing with the matter already referred in terms of High Court Central Excise Ref. Case No.l of 1998 pertaining to E/REF/211 to 216/97 in Appeal No. E/378 to 383/96 which was disposed of by final order of the Tribunal in Order dated 25-9-1997.
5. Heard ld. DR Ms. Aruna Gupta, who has no objection for reference of the case as the Tribunal has already dealt with the same issue ought to be referred to High Court of Andhra Pradesh in assessee’s own case pertaining to equipments used in Mines.
6. On a careful consideration of the submissions, we notice that Hon’ble High Court of Andhra Pradesh in Central Excise Ref. No. 1/98 has directed the Tribunal to refer the above named questions in respect of matters already referred to above arise from final order dated 25-9-1997 passed by the Tribunal in Appeal No. E/378 to 383/96. In the present case also, the Tribunal had rejected the benefit of Modvat credit in respect of inputs namely explosives used in Mines, hence the questions have a bearing to the matter pending before the High Court of Andhra Pradesh. Therefore, this reference application is allowed.
The Registry is directed to refer this matter to the High Court of Andhra Pradesh.