TaxTMI 
TaxTMI 
2004 (2) TMI 252
X X X X Extracts X X X X
X X X X Extracts X X X X
....mainly to their smelters for being subjected to smelting process for manufacture of non-ferrous metals and their by-products; that the mining is being done within the factory premises approved by the Department and, therefore, the capital goods, in question, are being used within the factory premises and not outside the factory; that it has been held in their own case as reported in 2002 (147) E.L.T. 1185 (T) that only those areas which are comprised in the ground plan approved under Rule 44 of the Central Excise Rules, 1944 would form part of the factory defined under Section 2(e) of the Central Excise Act; that again in their own case, M/s. Hindustan Zinc Ltd. v. C.C.E., Jaipur, 2002 (147) E.L.T. 989 (T), the Tribunal has allowed the Modv....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ble question of law arises from the Tribunal's decision reported in 2001 (127) E.L.T. 438 (T). The learned Advocate has also submitted that the mining is done in the mines located in the approved premises and the ore is brought to the surface by means of conveyor, which is then crushed and concentrated; that the definition of 'factory' covers not only premises wherein or in any part of which excisable goods are being manufactured, but it also includes even those premises wherein or in any part of which any manufacturing process concerned with the production of these goods, is being carried out; that it has been held by the Tribunal in the case of Dhampur Sugar Mills Ltd., 2001 (129) E.L.T. 73 that if all the plants, manufacturing different ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the definition in the Factory Act; that following the decision of the Supreme Court in Jaypee Rewa Cement case (supra), the Tribunal in the case of India Cements Ltd. v. C.C.E., 2002 (147) E.L.T. 393, has held that capital goods used exclusively in mines, are not entitled to Modvat credit. Reliance has also been placed on the decision in the case of C.C.E., Hyderabad v. India Cements Ltd., 2000 (118) E.L.T. 700 (T) and J.K. Sugar v. C.C.E., Kanpur, 2000 (125) E.L.T. 542. He also relied upon the Larger Bench decision of the Tribunal in the case of Vikas Industrial Gas v. C.C.E., Allahabad, 2000 (118) E.L.T. 257 (T-LB) wherein it has been held that the definition of 'factory', given in Sec. 2(e) of the Central Excise Act, covers the premises....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at credit of the duty paid on capital goods under Rule 57Q of the Rules, is available only if the capital goods are used in the factory of the manufacturer of final products. In the present matter, it is not in dispute that the impugned capital goods are used in the mines. It is the contention of the appellants that the mines are located underneath the concentration plant and as such are within the factory premises approved by the Department. It has also been emphasised that, as per the definition, the word 'factory' means any premises including the precincts thereof wherein or in any part of which excisable goods or wherein or in any part of it any manufacturing process connected with the production of the excisable goods is being or is or....