1. These three stay applications and appeals are taken up together for disposal as per law after granting waiver of pre-deposit of the amount involved, in view of the fact that the Commissioner (Appeals)in the impugned orders had followed the Five-Member Bench judgment in the case of M/s. Jaypee Rewa Cement,Rewa vs. CCE, Raipur reported in 2000(38) RLT 1111(CEGAT-LB)in which the Commissioner(Appeals)has held as under: "The process of manufacture of cement did not extend beyond the bounds of the cement factory as registered with the Central Excise Department under rule 174H and that the mining activity outside the factory, being an activity for procurement of a raw material (limestone), was only a process anterior to the commencement of the process of manufacture of cement and therefore, did not form part of the manufacture.The Hon'ble CEGAT further held that the explosives used for quarrying limestone in mines situated away from the cement factory cannot be held to be goods used in or in relation to the manufacture of cement and consequently would not qualify to be "inputs" for the Modvat credit under Rule 67A of the CE Rules, 1944" 2.The Commissioner(Appeals)has noted the above para in his orders while disposing of all the three appeals by order is Appeal No. 106 & 107/2000(H-III) CE dated 09.08.2000.Appellant were utilizing explosives for mining activity outside the factory.The larger bench in the case noted above has held that explosives used for quarrying limestone in mines situated away from the cement factory cannot be held to be 'goods' in or in relation to the manufacture of goods and the explosives was held to be not qualifying "inputs" for the benefit of Modvat Credit under Rules 57A of the Modvat Rules.
3. Learned Counsel submits that the mines are within the ground plan of the factory and hence this pleas was required to have been accepted by the larger bench.The issue is now pending before the Hon'ble Supreme Court and the reference application was also pending before the High Court.Therefore, he prays for waiver of pre- deposit of day amount and the appeals may be kept pending till the disposal of the appeal by the Hin'ble Supreme Court.
4. On the other hand the learned DR submits that identical matter came up for consideration before Bench in the cause list dated 25.4.2001 in the case of Indian Cements and Zuari Cement sin Appeal No. E/25--27 and 28/01 dated 25,.04.2001., Similar plea was raised by the learned Counsel therein and it was observed by the bench that no evidence of ground plan and licence granting the mines located within the factory was produced before the authorities.Mines are governed by the Mines Act while factories are registered under the Factories Act.Therefore, when the similar plea raised had already been dealt with by the Bench and the stay applications and the appeals were rejected by final order quoted above., similar orders may be passed in the present appeals also.he submits that there is no case for grant of waiver of pre-deposit of the amount and keeping the appeals pending and the appeals may be rejected by following g the ratio of the 5-Member larger bench judgment.
5. On consideration of the submission we find lot of force in the submissions of the learned DR.On 25.4.2001 similar matter came up for consideration before this Bench in the case of Indian Cements and Zuari Cements and in the light of the judgment of the larger bench (supra), the case was decided against the assessee.As a co-ordinate bench we are required to follow the 5-Member Larger bench judgment in terms of judicial discipline.We find that there is no stay granted by the Hon'ble Apex Court against the 5-Member Larger bench decision.In this view of the matter, following the ratio of the Larger bench decision(supra), we find no merit in the appeals and the appeals and the appeals are rejected. The stay applications also stand disposed of accordingly.