Rajesh Balia, J. - (1.) Learned counsel for the parties state that since the questions raised in this reference under Section 35 of the Central Excise Act, 1944 are governed by the two subsequent decisions of the Supreme Court and no further arguments are to be raised, the preparation of paper book be dispensed with and reference may be answered in terms of the Supreme Court decision.
(2.) In view of the aforesaid, the preparation of paper book is dispensed with. The three questions which were directed by this Court vide order dated 7.7.2003 to be referred to this Court for its decision arising out of the order of the Central Excise and Gold Control Appellate Tribunal, New Delhi dated 18.6.2002 are as under:- 1. Whether in the facts and circumstances of the present case, the precincts of the plant area, where the crusher and conveyor belt are installed, can be called as a factory within the meaning of Section 2(e) of the Act? 2. Whether the mining area and the area covered under the crusher and the conveyor belt reaching plant falls within the premises/ precincts of the factory as defined in Sec.2(e) of the Act? 3. Whether capital goods used in the precincts of the factory area for obtaining crushed limestone and transporting crushed limestone into raw mill which is then used in the plant for the manufacture of cement can be considered as eligible for Modvat credit in terms of Rule 57Q of the Central Excise Rules, 1944?
(3.) The facts of the case are that the goods in question whether as inputs or as capital goods were used by the assessee at the site of captive mines whose raw material are exclusively to be used for manufacture of cement by the assessee-applicant. The Tribunal has disallowed the claim of the assessee to avail modvat credit on the inputs detailed in the order from April 1999 to June 1999 on the ground that since mines were not part of factory, the inputs and the capital goods were not used in the factory for producing, processing or manufacturing any goods. The Tribunal following the decision in Jaypee Rewa Cement Vs. CCE 2001 (133) ELT 3 (SC) had allowed the availing of modvat credit on inputs namely the explosives and lubricants used in crusher and conveyer belts at mines whereas the duty paid on capital goods at captive mines was disallowed. The Supreme Court in its decision in J.K.;