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TMI Blog2006 (3) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... n the appeal is as to whether the appellants who are 100% EOU are entitled for the benefit of the exemption Notifications No. 123/81-C.E., dated 2-6-1981, 37/2000-C.E., dated 8-5-2000 and 58/2000-Cus., dated 8-5-2000. The latter two notifications grant benefit to the capital goods used in a quarry. The appellants had procured capital goods without payment of duty under the Notification No. 123/81-C.E., dated 2-6-1981. The benefit has been denied on the ground that they have used the capital goods in the mining area which was not within the bonded area in terms of the Customs Notification. The contention of the appellant is that the capital goods were used for the purpose of excavating raw granites, the same were utilized for the manufacturi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perly accounted the same in their records. After due accountable of the receipt, the impugned capital goods/consumables intended for use in the quarries/mines were sent to the mining area (quarries) for being used in the manufacture of the export goods. It is further submitted that in the present case they were under the bona fide belief that the equipments intended for the use in the quarry could be taken out of the factory for use in the quarries. 4. It is also submitted that the mining area can be considered as a place of manufacturing operation, for which they relied on the Supreme Court judgment rendered in the cases of Indian Copper Corp. v. CCE reported in 1962 (16) S.T.C. 259 and Chowgule & Co. Pvt. Ltd. v. UOI reported in 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Notification for procurement of the impugned goods is also be void ab initio. Therefore, the demand of duty under the impugned order, which is beyond a period of six months (as existed during the material period) is clearly time-barred. Further in this case as there is no element of suppression or mis-statement on the part of the appellants, the extended period of limitation cannot be invoked. 5. The learned SDR after careful consideration of the written submissions filed by the appellants and the judgments on the identical point fairly submitted that in view of the latest judgment of the Larger Bench of the Apex Court rendered in the case of M/s. Vikram Cement v. CCE, Indore reported in 2006 (194) E.L.T. 3 (S.C.) = 2006-TIOL-04-SC- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e capital goods have been used in manufacture of the goods which are required for export of the items in terms of Para (b) of the notification. The Apex Court in the case of CCE v. Ginni Filaments Ltd. reported in 2005 (181) E.L.T. 145 (S.C.) have examined the issue and have held that in the preamble, which deals with removal of goods from 100% Export Oriented Unit under CT-3 Form, the Apex Court found the use of the words "in connection with the manufacture of" which words are wider when compared to the words in the conditions for exemption viz., "used in the manufacture". The Apex Court noted that reading the Notification in entirety, therefore, two stipulations have to be fulfilled viz., removal of the 'goods' from 100% EOU to the factor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m for growing shrimps. In this case a similar situation arose where the capital goods had to be taken to pump sea water into the aquaculture farm for growing shrimps and not directly used in the bonded premises. The Larger Bench of the Apex Court in the case of M/s. Vikram Cement (supra) has now held that when the capital goods are used in mines for excavation of limestone which are used in the manufacture of cement in the factory is required to be granted the benefit of Cenvat credit, as the mining is also required to be considered as part of factory. Further, the reason given is that the excavated limestone is utilized in the manufacture of the final product. In the present case also without the quarrying of granites, the export of the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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