TMI Blog1991 (12) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... stant Collector of Central Excise, Howrah (West) Division. The latter had held that the respondents (herein) were not eligible for Modvat credit in respect of Aloxide Paper used by them in the manufacture of plywood, the same being tools and appliances which belong to the category of goods which are specifically excluded from the scope of the term input in view of the Explanation Clause under Rule 57A. The Collector (Appeals) allowed the appeal going by the earlier decision in a similar matter relating to M/s. Sarda Plywood Industries of Jorhat Division of Shillong Collectorate (Order-in-Appeal No. 80/SH/89, dated 22-12-1989). 2. Shri M. N. Biswas, learned Senior Departmental Representative appeared for the appellant Collector during th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant is not sure whether it is one or the other. It has to be only one of the two. There is lot of confusion in the appeal. To be excluded from the benefit of Modvat the goods in question should not be machinery, machines, tools, appliances etc., which are listed in the Explanation to Rule 57A. The goods in question are not any of these items and Modvat cannot be denied at all. Abrasive paper which is Aloxide Paper is by no stretch of imagination a tool. He then referred to Chapter Note (e) under Chapter 68 in terms of which that Chapter does not cover tools or parts of tools of Chapter 82. This will rule out the question of the Aloxide Paper being tools. Even the lower authority had only stated that the paper in question is used as tool ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed by the Collector (Appeals) and it is against this Order-in-Appeal that the present appeal has been filed. As to the contentions raised that the department is indecisive as to whether the item in question is tool or appliance he stated that it could be either. It merits consideration under both. It is one of the two. If there is any doubt, it can still be covered by the other expression equipment. A further alternative would be that the item in question is capable of being covered by the expression machinery. This is a more comprehensive term than machine and would cover parts of machinery also. The paper in question is used with the machine, for polishing plywood and it is covered by the expression machinery and would be excluded fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Hindustan Development Corporation cases, the inputs there were oxygen and acetylene. The decision that these were not tools does not apply to the present issue concerning coated abrasive paper used for polishing plywood. He referred in this connection to the decision taken in respect of steel balls used in the cement industry for grinding clinker and other items to make cement, holding that the steel balls are not eligible inputs and urged that on the same basis the goods in question will not be eligible for Modvat credit. 7. I have considered the submissions made by both the sides. Modvat credit is sought to be denied on. the goods in question namely Aloxide Paper which is stated to be coated abrasive paper used for polishing plywoo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he plea was to treat the goods as tools/appliance. A new plea cannot be allowed to be canvassed by the department with a view to fill in the gaps in the appeal which is what the new grounds sought to be raised during the hearing will constitute. Not that it is valid on merits either. The paper in question is neither equipment nor machinery. Any article used in a machine is not machine or machinery. The exclusion provision in the Explanation to Rule 57A is to be construed strictly and cannot be extended to consumable items like abrasive paper used in the machine. 8. Coming to the other case law cited, I find that in the Vikrant Tyres case, the Tribunal recalled their observation in the earlier case of M/s. Bombay Tyres International Ltd. v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not before the Bench and had not been decided by us. Perusal of two decisions relating to Associated Cement Companies Ltd. which have been reported in 1990 (50) E.L.T. 295 and 1991 (55) E.L.T. 415 do not point to a decision regarding the grinding medium (steel balls). Further the arguments advanced in the Straw Products case and in the present case were not so advanced in the said cases. Hence the argument advanced by Shri Biswas, based on the Associated Cement Companies Ltd. case is not of relevance. 9. For the foregoing reasons, I hold that the coated abrasive paper used for polishing plywood is not an excluded type of inputs and as such eligible for the benefit of Modvat credit. Accordingly, I dismiss the department s appeal and uph ..... X X X X Extracts X X X X X X X X Extracts X X X X
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