M/S BIRLA CORPORATION LTD. versus COMMISSIONER OF CENTRAL EXCISE

Citation: [2005] SUPP. 1 S.C.R. 821 · Decided: 26-07-2005 · Supreme Court of India · Bench: B.P. SINGH · Disposal: Appeal(s) allowed

Judgment (excerpt)

MIS BIRLA CORPORATION LTD. 
v. 
COMMISSIONER OF CENTRAL EXCISE 
JULY 26, 2005 
[B.P. SINGH AND S.H. KAPADIA, JJ.] 
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. 
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 
A 
B 
c 
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 
D 
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. 
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 a

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