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CASE NO.: Appeal (civil)  5118 of 2003

PETITIONER: M/S.BIRLA CORPORATION LTD.                

RESPONDENT: COMMNR. OF CENTRAL EXCISE   

DATE OF JUDGMENT: 26/07/2005

BENCH: B.P. SINGH & S.H. KAPADIA  

JUDGMENT: J U D G M E N T

B.P.SINGH, J.         The short question involved in this appeal is whether the duty paid on spares of rop eway  used for the purpose of transporting the crushed limestone from the mines located 4.2 kms. a way to  the factory, is entitled to Modvat credit.         The Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi (for short  ’CEGAT’)  by its impugned order of 25th March, 2003 disallowed the Modvat credit on the grou nd  that the ropeway transports raw material from the mines to the factory premises and is not a  material  handling equipment within the factory premises.   It is not disputed before us that the crus hed lime  stone is brought from the mines to the factory premises where it is deposited utilising the  ropeway  as  a means of transportation.         An identical issue came up for consideration before the CEGAT, in J.K.Udaipur Udyog  Ltd. Vs. CCE, Jaipur-II [2001(130)ELT 996.   In that case the tribunal held, following the p rinciples  laid down in the case of CCE, Chennai Vs. Pepsico India Holdings Ltd. [2001(130) ELT 193], t hat the  assessee was entitled to the Modvat credit.   The Commissioner of Central Excise came up in  appeal  before this Court in Civil Appeal No.1129/2003 impugning the aforesaid decision  of the CEGA T.    However, by order dated July 10, 2003 the appeal was dismissed in view of the fact that the  learned  Attorney General appearing for the Commissioner of Central Excise stated that he did not wis h to  press the appeal in view of the letter of the Department dated 5th June, 2003.  The aforesai d letter  reads as follows:         "Please refer to your office letter, dated 2nd May 03 on the  above cited subject.   In this connection it is to inform you that case of  CCE, Chennai Vs. M/s.Peps.co India Holdings Ltd. Reported in  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/16/16/2003-CZO dated 3-6-03."     In these circumstances, this Court dismissed the appeal.         Learned counsel appearing on behalf of the appellant submitted before us that there  are  several decisions of the tribunal which have followed the principles laid down in J.K. Udaip ur Udyog  Ltd. and Pepsico India Holdings Ltd. (supra) and the law is now well settled.         In the instant case the same question arises for consideration and the facts are alm ost

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identical.   We cannot permit the Revenue to take a different stand in this case.  The earli er appeal  involving identical issue was not pressed and was therefore, dismissed.  The respondent havi ng taken a  conscious decision to accept the principles laid down in Pepsico India Holdings Ltd.(supra)  cannot be  permitted to take the opposite stand in this case.  If we were to permit them to do so, the  law will be in  a state of confusion and will place the authorities as well as the assessees in  a quandary.           We, therefore, allow this appeal and hold that Modvat credit is available to the app ellant  in the facts and circumstances of the case.   This appeal is accordingly allowed.   The orde r of the  CEGAT is set aside.         No costs. C.A.No.8268/2003         In view of the judgment and order passed in Civil Appeal No.5118 of 2003, this appea l is  allowed in the same terms.         No costs. CIVIL APPEAL NO.4526/2005 [Arising out of SLP(C)No.737/2004]

       Special leave granted.         Heard counsel for the parties.         Respondents waive notice.            This appeal is squarely covered by our judgment and order pronounced today in M/s.  Birla Corporation Ltd. Vs. Commnr. of Central Excise[C.A.No.5118/2003]. Following the judgme nt  impugned in the aforesaid appeal, the appeal of the appellants herein was dismissed by the t ribunal.    In view of the fact that we have today allowed the appeal of M/s. Birla Corporation Ltd. in  Civil  Appeal No.5118/2003, this appeal is also allowed and it is held that the appellant is entitl ed to the  Modvat credit claimed before the tribunal.

CIVIL APPEAL NO.4527/2005 [Arising out of SLP(C)No.3196/2004]

       Special leave granted.         Heard counsel for the parties.         Respondents waive notice.            This case is squarely covered by our judgment and order         in Birla Corporation   Ltd. in Civil Appeal No. 5118 of 2003 pronounced today.   Following the judgment impugned in  the  aforesaid appeal, the CEGAT had dismissed the appeal of the Appellant herein.  This Court ha ving  allowed the appeal preferred by M/s. Birla Corporation Ltd., this appeal must also be allowe d.   Accordingly, this appeal is allowed.   The judgment and order of the CEGAT is set aside and  it is held  that the appellant herein is entitled to Modvat credit claimed before the CEGAT in respect o f the  ropeways and spare parts thereof.          No costs.