JUDGMENT
Jeet Ram Kait
1. The COD application is allowed after hearing both sides as the delay is only 9 days being marginal and the reasons given in the affidavit annexed in the application is that the concerned person had fallen sick and he had been admitted in the hospital. Proof of sickness and medical certificate is enclosed. Hence, the delay of 9 days in filing the appeal is condoned.
2. Ld. Counsel submits that the issue pertains to disallowance of Modvat credit on explosives used in the mines amounted to Rs. 76,503/- The explosives are used as inputs on which duty has been paid by the appellants falling under Chapter 36 of the Central Excise Tariff which are used in mining in order to extract limestone which in turn is used as raw material in the manufacture of the final product cement. The Commissioner (Appeals) has not allowed them the Modvat credit on the explosives used in the mines by applying the ratio of the decision rendered by 5-Member Bench of the Hon’ble CEGAT in the case of M/s. Jaypee Rewa Cement, Rewa v. CCE Jaipur reported in 2000 (38) RLT 1111 (CEGAT-LB).
3. Ld. Counsel while reiterating the submission made in their appeal has argued that the decision of the 5-Member Larger Bench of the Tribunal in the case of Jaypee Rewa Cement, Rewa has been set aside by the Hon’ble Supreme Court in their own case i.e. Jaypee Rewa Cement v. CCE, MP reported in 2001 (98) ECR 193 (SC) on the grounds that the credit is available under Rule 57J read with Notification issued on 20.6.86 which was amended from time to torne and the Hon’ble Tribunal has not referred to the provisions of Rule 57J which is applicable notwithstanding anything contained in other rules. The Tribunal was of the view that Rule 57F was not applicable in this case as explosives had not been brought into the factory but had been used at a place away from the factory and had held that Rule 57A was not applicable. Since duty has been paid on the explosives which have been used in the mines for quarrying limestones (sic) which are ultimately used in the manufacture of their final product cement, therefore they are clearly entitled to the credit under Rule 57J read with Rule 57A.
4. Ld. DR Shri A. Jayachandran agrees that in view of the Supreme Court judgment now setting aside the earlier 5-Member judgment rendered by the Tribunal, he leaves the matter to the bench to decide as per law.
5. We have carefully considered the whole issue and are of the considered view that in view of the judgment rendered by the Hon’ble Supreme Court on 22.8.2001 in the matter of Jaypee Rewa Cement v. CCE, MP reported in 2001 (98) ECR 193(SC), the appellants are entitled to the Modvat credit under the provisions of Rule 57J which is applicable notwithstanding anything contained in other Rules. Credit is, therefore, available under Rule 57J read with Notification issued on 20.6.86 which was amended from time to time. We, therefore, allow the appeal by setting aside the order passed by the Commissioner (Appeals), Hyderabad. Ordered accordingly.
(Pronounced & dictated in open Court)