ORDER
V.K. Agrawal, Member (T)
1. The appeal, filed by South Eastern Coalfields Ltd. (SEC Ltd.) was posted for hearing the stay petition filed by them. As the issue involved was in narrow compass, the appeal is itself taken up for disposal with the consent of both the parties. Accordingly the recovery of duty and penalty is stayed. The issue involved in this appeal is whether the exemption contained in Notification No. 63/95-CE., dated 16-3-1995 is available to the goods manufactured by them in their workshop, Korba.
2. Shri P.R. Biswas, ld. Consultant submitted that the Central Electrical and Mechanical Workshop, under the control of South Eastern Coalfield Ltd., was established at Korba in 1967 to facilitate repair of all mining machinery and equipment used in the adjacent coal mines and other collieries, that the Central Government has declared the workshop as a mine under the provisions of Section 82 of the Mines Act, 1952 under certificate dated 1-5-1969; that as per Section 2 (j) (vii) of the Mines Act, mine includes “all workshop situated within the precincts of mine and under the same management and used solely for purposes connected with that mine or a number of mines under the same management;” that Notification No. 63/95-C.E., exempts all goods manufactured in workshops situated within the precincts of mines; that as the workshop; has been declared as Mines by the Central Government, the benefit of the exemption notification is available to the goods manufactured in the workshop; that the Appellate Tribunal in the case of Central Coalfields Ltd. v. C.C.E., Jamshedpur, 1997 (23) RLT 269 (T), Final Order Nos. A. 1262-1263/97 dated 16-9-1997 has extended the benefit of earlier Notification No. 182/87 to the goods produced in the workshop holding that as the workshop could not be situated within the precincts of all the mines and the workshop could cater to the requirement of all the mines situated under the same management, it has to be held that the workshop was situated within the precincts of all the mines to which it was catering, even though it might be situated at a distance as far as 50 Km from the Workshop concerned. The Ld. Consultant mentioned that it is evident from Annexure D to the show cause notice dated 3-9-1998 that the goods were cleared by them only to the mines owned by them and not to the mines owned by their subsidiaries. He, further, submitted that the registration of workshop under the Factories Act is a non-issue; that the Adjudicating Authority has based his findings on the exclusion clause in Section 2(m)(ii) of the Factories Act which reads, “but does not include a mine subject to the operation of the Mines Act, 1952;” that the clause ‘mine subject to the operation of the Mines Act’ refers to the actual mining activity whereas the workshop is not concerned with the mining activity and being a factory has to come under the Factories Act; that the same unit can be covered under two different statutes.
3. Countering the arguments, Shri K.K. Goel, ld. S.D.R. submitted that the certificate of the Department of Labour and Employment is dated 1-5-1969 whereas the workshop has been registered under the Factories Act with effect from 19-11-1988 and, therefore, it ceases to be mines and any registration under the Mines Act becomes redundant; that in addition, the Deputy Director, Industrial Health and Safety, Bilaspur, under letter dated 6-3-1995 has mentioned that the workshop at Korba is not covered under Mines Act. He emphasized that Factory under Factories Act, does not include a mine subject to the operation of the Mines Act; that this exclusion clause clearly supports the case of the Department that the workshop is not a mine; that the Commissioner has rightly distinguished the Tribunal’s decision in Central Coalfields’ case, supra, by giving his findings that the workshop in that case was not registered under the Factories Act.
4. We have considered the submissions of both the sides. Notification No. 63/95-C.E., exempts the goods manufactured in workshop situated within the precincts of mines. It is not in dispute that the workshop at Korba is not situated within the premises of mines. The ld. Consultant has relied upon the decision of the Tribunal in Central Coalfields’ case in support of his contention that precincts cannot be restricted to an area of four kilometer. In the said case the adjudicating authority himself has held the workshop to be the precinct of the nearest mine which was 4 kms. The issue involved in that case was whether the exemption was available only in respect of the goods cleared from the workshop to the nearest mines or to all the mines situated at a distance of more than 4 kms from the workshop. The issue involved in the present matter before us is thus different from the Central Coalfields’ case in as much as the exemption has been denied on the ground that the workshop was not mines as it was registered under the Factories Act. The Commissioner has given a categorical finding in the impugned Order that admittedly the Central Electrical and Mechanical Workshop, Korba, is registered under the Factories Act, 1948 and accordingly the exemption contained in Notification No. 63/95-C.E., cannot be extended to the goods manufactured in the said workshop. We do not find any thing wrong in the finding of the Commissioner. As per Explanation (ii) to Notification No.. 63/95-C.E., “mine” has the meaning assigned to it in clause (j) of Section 2 of the Mines Act, 1952. It is not disputed by the Appellants that the workshop is registered as a factory under the Factories Act, 1948. As per Section 2(m) of the Factories Act, “factory means any premises including the precincts thereof…but does not include a mine subject to the operation of the Mines Act, 1952….” In the light of specific exclusion of mine which is subject to the operation of Mines Act from the definition of factory, we do not find any substance in the submission of the ld. Consultant that both Acts can apply to the same unit. Accordingly, we hold that the benefit of the Notification No. 63/95-C.E., is not available to the goods in question. The demand of excise duty as confirmed in the impugned order is upheld. However, in view of the facts of the case, we are of the view that no penalty is imposable in the present matter and accordingly we set aside the penalty imposed on the Appellants.
The appeal is disposed of in above terms.