Commr. of Central Excise, Coimbatore v. Jawahar Mills Ltd., (SC) BS78352
SUPREME COURT OF INDIA

Before:- S.P. Bharucha and Y.K. Sabharwal, JJ.

Civil Appeal Nos. 619-626 of 2000 and etc. etc.. D/d. 27.7.2001.

Commissioner of Central Excise, Coimbatore and others - Appellant

Versus

Jawahar Mills Ltd. and others - Respondents

For the Appearing Parties :- Soli J. Sorabjee, Attorney General, Harish N. Salve, Solicitor General, R.N. Trivedi, Mukul Rohtagi, Additional Solicitor Generals, Sudhir Chandra, Ranjit Kumar, Joseph Vellapally, Sr. Advocates, N.K. Bajpai, K. Swami, Ms. Nisha Bagchi, Ms. Smitha Inna, K.C. Kaushik, R.N. Poddar, Rajiv Nanda, B.K. Prasad, Rana Mukherjee, Ms. Sumita Mukherjee, P.K. Ganguly, V. Lakshmikumaran, M. P. Devenath, B.L. Narasimhan, V. Balachandran, Rajesh Kumar, Balbir Singh, Dayan Krishnan, Nikhil Nayyar, Trideep Pais, Ms. Meenakshi Arora, H. K. Puri, S. K. Puri, Rajesh Srivastava, Ujjwal Banerjee, Ms. Anidita Gupta, Vijay K. Jain, M.P. Shorawala, M.P. Vinod, U.A. Rana, Ms. Shalini Mittal, Arvind Kumar, Ashok K. Mahajan, K.V. Viswanthan, Atul Kumar Shinha, K.V. Venkataraman, Ms. Indu Malhotra, Ms. Binu Tamta, Varun Goswami, Ravinder Narain, Vikram Singh, P. C. Jain, Sandeep Jain, Ms. Shipra Ghose, Rupesh Kumar, Tara Chandra Sharma, Rajeev Sharma, Ajay Sharma, Vinay Garg, Deepam Garg, Gurav Jain, Ms. Abha Jain, A.C. Jain, B. Mohan, Rakesh K. Sharma, M. Venkatraman, Subramonium Prasad, Rajendra Singhvi, Ashok Kumar Singh, Ms. Rohina Nath, Umesh Kumar Khaitan, Tarun Gulati, V. G. Pragasam, Manmeet Singh Jamwal, Puneet Dutt Tyagi, Ms. Suruchii Aggarwal, Ms. N. Annapoorani, Pramod B. Agarwala, Ravindra Kumar, Ms. Manjula Gupta, S. Nanda Kumar, V. Vijayan, L K. Pandey, V. J. Francis, K. V. Viswanathan, Ms. Gauri Rasgotra, Suman Jyoti Khaitan, K. K. Mohan, Rajesh, E. C. Agrawala, Rishi Agrawal, R. Santhanam, Mehesh Agrawala, Praveen Kumar, Shri Narain, Sandeep Narain, Ms. Anjali, Advocate for S. Narain and Co., Advocates, Y. P. Singh, Chatanya Siddarth, Debasis Misra Advocates.

Central Excises and Salt Act, 1944, Section 35L - Central Excise Rules, 1944, Rules 7 and 57 - Capital goods - Modvat credit - Definition is wide - Classification as capital goods depends upon the user to which it is put - Modvat credit claimed in respect of Power cables, Capacitors, Control panels etc. - Held that the plea raised by revenue in appeal that these goods are not capital goods in view of user to which they are put is not acceptable - Appeals dismissed.

[Paras 6 and 7]

Cases Referred :-

Indian Farmers Fertilisers Co-operative Ltd. v. Collector of Central Excise, Ahmedabad, (1996) 5 SCC 488.

JUDGMENT

Y.K. Sabharwal, J. - In this batch of appeals the only point in issue in regarding availing of Modvat Credit in respect of certain items by the manufacturers treating those items as 'Capital goods' in terms of Rule 57-Q of the Central Excise Rules, 1944. The controversy was whether those items were 'Capital goods' or not within the meaning of Rule 57-Q .

2. Rule 57-Q was introduced by Notification No. 4/94-CE dated 1 March, 1994. It enabled manufacturers to claim Modvat Credit of duty paid on 'Capital goods' used in their factory. The expression 'Capital goods' has been defined in the Explanation to Rule 57-Q. For the proper appreciation of the controversy between the parties it would be convenient to reproduce Rule 57-Q along with its Explanation. It reads as under :

Explanation.- For the purposes of this section,-

3. The Tribunal by the impugned judgment and order dated 13th April, 1999, considered various items which were involved in different appeals and by a common judgment and order decided the controversy in favour of the manufacturers rejecting the stand of the revenue that those are not 'Capital goods' within the meaning of Explanation (1)(a) defining 'Capital goods'. Some of the items considered by the Tribunal are : power cables and capacitors in case of Jawahar Mills Ltd., control panels, cables distribution boards, switches and starters and air compressors in the case of Indian Refrigeration Co. Ltd.; electric wires and cables in the case of Kothari Sugar and Vijay Chemicals. The Tribunal on consideration of the aforesaid provision and various decisions including some of this Court one of it being by a Bench of which one of us (Bharucha, J.) was a member (Indian Farmers Fertilisers Co-operative Ltd. v. Collector of Central Excise, Ahmedabad, (1996) 5 SCC 488, came to the conclusion that the items involved qualify as 'Capital goods' under Rule 57-Q and would thus be eligible for Modavat Credit. The Tribunal did not accept the contention of the Revenue that the items were not 'Capital goods' within the meaning of term as defined in Explanation (1).

4. The aforesaid definition of 'Capital goods' is very wide. Capital goods can be machines, machinery, plant, equipment, apparatus, tools or appliances. Any of these goods if used for producing or processing of any goods or for bringing about any change in any substance for the manufacture of final product would be 'Capital goods', and, therefore, qualiffy for availing Modvat Credit Per Clause (b), the components, spare parts and accessories of the goods mentioned in Clause (a) used for the purposes enumerated therein would also be 'Capital goods' and qualify for Modvat Credit entitlement. Clause (c) makes moulds and dies, generating sets and weigh bridges used in the factory of the manufacturers as capital goods and thus qualify for availing Modvat Credit. The goods enumerated in Clause (c) need not be used for producing the final product or used in the process of any goods for the manufacture of final product or used for bringing about any change in any substance for the manufacture of final product and the only requirement is that the same should be used in the factory of the manufacturer. Thus, it can be seen that the language used in the explanation is very liberal.

5. In the case of Indian Farmers Fertiliser Co-operative Ltd., (supra) this Court interpreted the notification which conferred exemption in respect of such raw naphtha as was used in the manufacture of ammonia provided such ammonia was used elsewhere in the manufacture of fertilisers. The facts of that case were that the appellant was manufacturer of urea - a fertiliser and utilised for that purpose raw naphtha. The question therein was whether ammonia used in the off-site plants was also ammonia which is "used elsewhere in the manufacture of fertilisers". The off-site plants were held to be part of the process of the manufacture of urea. Relying upon the phraseology used in the exemption notification, it was held that there was no good reason why the exemption should be limited to the raw naphatha used for producing urea that is utilised directly in the urea plant since the notification only required that the ammonia should be used in the manufacture of fertiliser and not that it should be used directly in the manufacture of fertilisers. The Court said that :

6. The contention of learned Additional Solicitor General that the aforesaid decision and other decisions referred by the Tribunal in the impugned order were cases involving sales tax and income-tax and, therefore, the Tribunal should not have relied on those decisions is without any substance because the real question is that of the principle laid down by a decision. In view of the liberal language of the provision, Mr. Rohtagi fairly and very rightly did not seriously dispute that if any of the items enumerated in Explanation 1(a) is used for any purpose mentioned therein for the manufacture of final products, it would satisfy the test of 'Capital goods'. The main contention of Mr. Rohtagi, however, is that the question whether an item falls within the definition of 'Capital goods' would depend upon the user it is put, to. The submission is that parts of the items in respect whereof availing of Modvat credit has been allowed by the Tribunal could not be treated as 'Capital goods' as the manufacturer could not establish that the entire item was used in the manufacture of final product. To illustrate his point Mr. Rohtagi submitted that part of a cable may go into the machine used by the manufacturer and, thus, may qualify the requirement of Clause 1(a) and, at the same time, another part of the cable which is used only for lights and fans would not so qualify. We have no difficulty in accepting the contention of the learned Additional Solicitor General that, under these circumstances, user will determine whether an item qualifies or not the requirement of Clause 1(a). However, in the present cases this aspect has no relevance. It was not the case of the revenue at any stage before the authorities that an item does not satisfy the requirement of 'Capital goods' within the meaning of the Rule on the ground of its user as it now sought to be urged by the learned counsel. The case of the revenue has all through been that the items in question per se are not 'Capital goods' within the meaning of the expression as defined in Explanation 1(a). In respect of the cables of which Mr. Rohtagi gave example, the stand of the revenue before the Tribunal was that the cables per se cannot be treated as 'Capital goods'. The stand of the revenue was not as has been projected now by Mr. Rohtagi. In this view, the question of directing remand of these matters for fresh decision by the Tribunal does not arise. On the facts and circumstances of these cases, therefore, the stand that the items in question are not used for manufacture of final product cannot be accepted for the reasons aforestated.

7. We find no substance in the appeals of the revenue. The same are accordingly dismissed. The special leave petitions are also disposed of accordingly. Parties are left to bear their own costs.

Appeals dismissed.