M/S BIRLA CORPORATION LTD.versusCOMMISSIONER OF CENTRAL EXCISE

                    MIS BIRLA CORPORATION LTD.                                  A
                                 v.
                  COMMISSIONER OF CENTRAL EXCISE

                               JULY 26, 2005

                   [B.P. SINGH AND S.H. KAPADIA, JJ.]                           B


      Central Excise-Modvat credit-Entitlement to-Duty paid on spares
of ropeway w;ed for transporting crushed limestone from mines located 4. 2
kms away to the factory premises-Held: Entitled to Modvat credit.
                                                                                c
      Practice and Pro"cedure-Appeal before Supreme c_ourt-Revenue
consciously did not press its appeal after taking a partfcular stand-Appeal
was therefore dismissed-Held: In a subsequent appeal involving identical
issue, the Revenue cannot be permitted to take a opposite stand

      The question which arose for consideration in the present appeal is D
whether the duty paid on spares of ropeway, used for the purpose of
transporting crushed limestone from the mines located 4.2 kms away to th'e
factory, is entitled to Modvat credit

      Allowing the appeals, the Court
                                                                                 E
       HELD: 1.1. An ideritical issue came up for consideration before the
Tribunal in JK. Udaipur Udyog Ltd* where the Tribunal held, following the
principles laid down in Pepsico India Holdings Ltd.** that the assessee was
entitled to Modvat credit Revenue came up in appeal before this Court which
was dismissed since the Revenue did not press the appeal. [882-G-H; 823-A]       F
      1.2. In the instant case, the same question arises for consideration and
the facts are almost identical. The Revenue having taken a conscious decision
to accept the principles laid down in Pepsico India Holdings Ltd.** cannot be
permitted to take the opposite stand in this case. If the same is permitted, the
law will be in a state of confusion and will place the authorities as well as the G
assessees in a quandary. [823-D, F)

      *J.K. Udaipur Udyog Ltd. v. CCE, Jaipur-// 2001 (130) ELT 996 and
** CCE, Chennai v. Pepsico India Holdings Ltd., (2001) 130 EL T 193,

                                     821                                        H

                                                                                      ,-
    822                    SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A approved.
          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5118 of2003.

         From the Judgment and Order dated 25.3.2003 of the Central Excise,
    Customs and Gold (Control) Appellate Tribunal, New Delhi in F.O.No. A/160/
B   2003-NBC in A.No. E/A. No. 1307 of2002 with E/C0/306 of2002.

                                        WITH

          C.A. Nos. 8268/2003, 4256/2005.

C        (Arising out ofSLP(C) No. 737/2004) C.A. No. 4527/2005 (Arising out
    ofSLP(C) No. 3196/2004)

         Rajiv Dutta, Addi. Solicitor General S.K. Bagadia, T.M. Mohammad
    Yousuf, Praveen Kumar, Rupesh Kumar, Tufail A. Khan, Raghunath Kapoor,
    Ms. Indu Sharma and P. Parmeswaran with them for the appearing parties.
D
          The Judgment of the Court was delivered by .

           B.P. SINGH, J. The short question involved in this appeal is whether
    the duty paid on spares of ropeway used for the purpose of transporting the
    crushed limestone from the mines located 4.2 kms. away to the factory, is
E   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 ground that the ropeway transports raw material from
    the mines to the factory premises and is not a material handling equipment
F   within the factory premises. It is not disputed before us that the crushed 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 v. CCE, Jaipur-I/ (2001) 130 EL T 996. In that case
G   the tribunal held, following the principles laid down in the case of CCE,
    Chennai v. Pepsico India Holdings Ltd., (2001) 130 ELT 193, that 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
H   appeal was dismissed in view of the fact that the learned Attorney General
         BIRLA CORPORATION LTD. v. COMMR. OF CENTRAL EXCISE [BP. SINGH, J.]   823

  appearing for the Commissioner of Central Excise stated that he did not wish       A
  to press the appeal in view of the letter of the Department dated 5th June,
  2003. The aforesaid 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 v. Mis.Peps. Co India Holdings Ltd, Reported in 2001(42) B
          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.                    c
        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. Udaipur Udyog Ltd. and Pepsico India Holdings
  Ltd (supra) and the law is now well settled.
                                                                                     D
        In the instant case the same question arises for consideration and the
  facts are almost identical. We cannot permit the Revenue to take a different
  stand in this case. The earlier appeal involving identical issue was not pressed
  and was therefore, dismissed. The respondent having 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    E
  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 appellant in the facts and circumstances of the case. This appeal is
  accordingly allowed. The order of the CEGA T is set aside.                         F
       No costs.

  C.A. No. 8268/2003

       In view of the judgment and order passed in Civil Appeal No. 5118 of G
  2003, this appeal is allowed in the same terms.

       No costs.

  ClVlL APPEAL NO. 452612005

  [Arising out of SLP(C) No. 73712004]                                               H
    824                       SUPREME COURT REPORTS (2005] SUPP. I S.C.R.

A            Special leave granted.

             Heard counsel for the parties.

             Respondents waive notice.

B          This appeal is squarely covered by our judgment and order pronounced
    today in Mis. Bir/a Corporation Ltd v. Commnr. of Central Excise [C.A. No.
    5118/2003]. Following the judgment impugned in the aforesaid appeal, the
    appeal of the appellants herein was dismissed by the tribunal. In view of the
    fact that we have today allowed the appeal of Mis. Birla Corporation Ltd. in
    Civil Appeal No. 5118/2003, this appeal is also allowed and it is held that the
C   appellant is entitled to the Modvat credit claimed before the tribunal.

    CIVIL APPEAL NO. 452712005

    [Arising out of SLP(C) No.319612004}

D            Special leave granted.

             Heard counsel for the parties.

             Respondents waive notice.

E          This case is squarely covered by our judgment and order in Birla
    Corporation Ltd. in Civil Appeal No. 5118 of2003 pronounced today. Following
    the judgment impugned in the aforesaid appeal, the CEGAT had dismissed the
    appeal of the Appellant herein. This Court having allowed the appeal preferred
    by M/s. Birla Corporation Ltd., this appeal must also be allowed. Accordingly,
    this appeal is allowed. The judgment and order of the CEGAT is set aside and
F   it is held that the appellant herein is entitled to Modvat credit claimed before
    the CEGA T in respect of the ropeways and spare parts thereof.

             No costs.

    B.B.B.                                                       Appeals allowed. .