M/S. ESCORTS LTD.versusCOMMISSIONER OF CENTRAL EXCISE, DELHI

                         MIS. ESCORTS LTD.                              A
                                    v.
          COMMISSIONER OF CENTRAL EXCISE, DELHI

                          AUGUST 25, 2004

              [S.N. VARIAVA AND G.P. MATHUR, JJ.]
                                                                        B

      Central Excise Rules, 1944:

       Rule 57C-Excise duty-Final product-Inputs used in the
  manufacture of MODVAT credit on inputs-Entitlement to-Assessee C
  manufactured tractors and paid duty on the inputs used in the manufacture
  of parts-These parts were cleared to another factory of the assessee
  without payment of duty by virtue of Notification No. 217186-CE dt.
. 2-4-1986-These parts were used to m_anufacture tractors on which duty
  was paid-The Excise department denied MOD VAT credit on the duty paid D
  on the inputs-Validity of-Held: The final product is the tractor whereas
  the parts are intermediate products-The parts are, therefore, not final
  products-Hence, Rule 57C has no application in such cases-The mere
  fact that parts were cleared from one factory to another factory, the
  assessee would not be disentitledfrom claiming MOD VAT credit under the E
  said notification-However, in respect ofparts which are sold in the open
  market and/or used for manufacture of tractors on which no duty is paid,
  the benefit of the said notification may not be available.

      The appellant-assessee was a manufacturer of tractors and paid
 duty on the inputs used in the manufacture of parts. These parts were F
 then cleared to another factory of the appellant, without payment of
 duty by virtue of Notification No. 217/86-CE dated 2-4-1986. The parts
 were then used to manufacture tractors on which duty was paid.

      The respondent issued a show-cause notice on the grcund that G
 MODVAT credit was not admissible as the final goods i.e., the parts
 were cleared without payment of duty. The appellant claimed that the
 final products were not the parts but the tractors. The appellant
 further claimed that duty was being paid on the tractor and, therefore,
 MODV AT credit was available under the said notification. The Central H
                                   885
    886                  SUPREME COURT REPORTS (2004] SUPP. 3 S.C.R.

A   Excise and Gold (Control) Appellate Tribunal rejected the appellant's
    claim. Hence the appeals.

          Allowing the appeals, the Court

B         HELD: 1. Notification No. 217/86-CE dated 2-4-1986 shows that
    the inputs may be used within the factory of production or in any other
    factory of the same manufacturer. Thus merely because parts are
    cleared from one factory of the appellant to another factory does not
    make the parts the final product. [890-B; 891-GI

c         2. Rule 57D(2) of the Central Excise Rules, 1944 shows that in the
    manufacture of a final product an intermediate product may also come
    into existence. Thus in cases where an intermediate product comes into
    existence, even though no duty has been paid on the intermediate
    product as it is exempted from whole of the duty or is chargeable to
D   Nil rate of duty, credit would still be allowed so long as duty is paid
    on the final product. (892-C-Dj

         3.1. In cases of manufacturers like the appellant the final product
    is the tractor. The intermediate product would be parts which are
E   manufactured for being used in the tractor. In such a case the parts
    would not be final products. Thus Rule 57C would have no application.
    The mere fact that the parts are cleared from one factory of the
    appellant to another factory of the appellant would not disentitle the
    appellant from claiming benefit of Notification No. 217/86-CE dated
F   2-4-1986. (892-D-E)

          Collector of Central Excise v. Hindustan Sanitaryware & Industries,
    (2002) 145 ELT 3 SC, relied on.

       3.2. The appellant will be entitled to MODYAT credit on duties
G paid for the inputs used for manufacture of parts, so long as the parts
  are used in the manufacture of tractors on which duty is paid.
  However, in respect of parts which are sold in the open market and/
  or used for manufacture of tractors on which no duty is paid, the
  benefit of Notification No. 217/86-CE dated 2-4-1986 may not be
H available. [893-A-B)
                ESCORTS LTD. v. C.C.E. [VARIAVA, J.]                 887

    CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 6909- A
6912 of 2003.

     From the Judgment and Order dated 17.3.2003 of the Central Excise
and Gold (Control) Appellate Tribunal, New Delhi in A. No. E/206, 1648-
49/95-NB and E/244/96-NB in F.O. No. Nl42-145 of 2003-NB(C).            B
     V. Lakshmikumaran, Alok Yadav and Rajesh Kumar for the Appellant.

     T.L.V. Iyer, Sanjiv Sen, P. Parmeswaran and B. Krishna Prasad for
the Respondent.                                                        C
     The Judgment of the Court was delivered by

     S.N. VARIA VA, J. : These Appeals are against the Judgment dated
17th March, 2003 passed by the Customs Excise and Gold (Control) D
Appellate Tribunal (for short CEGAT).

     Briefly stated the facts are as follows:

      The Appellants are manufacturer of tractors. They MODYAT credit
in respect of duties paid on inputs used in the manufacture of parts. Those E
parts were then cleared to another factory of the Appellants, without
payment of duty, by virtue ofNotification No. 217/86-CE dated 2nd April,
1986. The parts were then used to manufacture tractors on which duty was
paid.
                                                                           F
      The Respondent issued a show-cause notice on the ground that
MODVAT credit was not admissible as the final goods, i.e. the parts were
cleared without payment of duty. The Appellants claimed that the
final products were not the parts but the tractors. The Appellants
claimed that duty was being paid on the tractor and, therefore, G
MODVAT credit was available under Notification No. 217/86-CE dated
2nd April, 1986.

    The explanation given by the Appellants was not accepted. The
Appellants therefore filed an Appeal before CEGAT. By the impugned H
    888                   SUPREME COURT REPORTS (2004] SUPP. 3 S.C.R.

A Judgment, CEGAT has held that, as the parts are cleared from the factory
    where they are manufactured to another factory of the Appellants which
    is located in a different premises and is separately registered under the
    Central Excise Law, the finished products are the parts. CEGAT has held
    that as no duty was paid on the parts MODVAT credit was not available.
B
          At this stage, the concerned Rules of the Central Excise Rules, 1944
    and the relevant portion of Notification No. 217 /86-CE dated 2nd April,
    1986 may be noticed. Rules 57 A, 57C and 570 read as follows:

C             "57A. Applicability.-(1) The provisions of this section shall apply
             to such finished excisable goods (hereinafter referred to as the
             "final products", as the Central Government may, by notification
             in the Official Gazette, specify in this behalf, for the purpose of
             allowing credit of any duty of excise or the additional duty under
             Section 3 of the Customs Tariff Act, 1975 (51 of 1975), as may
D            be specified in the said notification (hereinafter referred to as the
             "special duty") paid on the gooJ3 used in or in relation to the
             manufacture of the said final products (hereinafter referred to as
             the "inputs") and for utilizing the credit so allowed towards
             payment of duty of excise leviable on the final products,
E            whether under the Act or under any other Act, as may be specified
             in the said notification, subject to the provisions of this section
             and the conditions and restrictions that may be specified in the
             notification:

F                  Provided that the Central Government may specify the goods
             or classes of goods in respect of which the credit of specified duty
             may be restricted.

                   Explanation.- For the purposes of this rule, "inputs" includes-
G
                   (a)   inputs which are manufactured and used within the
                         factory of production, in or in relation to, the
                         manufacture of final products,


H                  (b)   paints and packaging materials, and
        ESCORTS LTD. v. C.C.E. (VARIAVA, J.]                 889

     ( c)   inputs used as fuel,                                   A

     but does not include



                                                                   B
57C. Credit of duty not to be allowed if final products are
exempt.- No credit of the specified duty naid on the inputs used
in the manufacturer of a final product (other than those cleared
either to a unit in a Free Trade Zone or to a hundred per cent
Export-Oriented Unit) shall be allowed if the final product is C
exempt from the whole of the duty of excise leviable thereon or
is chargeable to nil rate of duty.

57D. Credit of duty not to be denied or varied in certain
circumstances. - (!)Credit of specified duty allowed in respect D
of any inputs shall not be denied or varied on the ground that part
of the inputs is contained in any waste, refuse, or by-product
arising during the manufacture of the final product, or that the
inputs have become waste in or in relation to the manufacture of
the final product, whether or not such waste, refuse or by-product E
is exempt from the whole of the duty of excise leviable thereon
or is chargeable to nil rate of duty or is not specified as a final
product under rule 57 A.

      (2) Credit of specified duty allowed in respect of any inputs
shall not be denied or varied on the ground that any intermediate F
products have come into existence during the course of manufacture
of the final product and that such intermediate products are for
the time being exempt from the ~hole of the duty of excise
leviable thereon or chargeable to nil rate of duty:
                                                                   G
     Provided that such intermediate products are

     (a)    used within the factory of production in the manufacture
            of a final product (other than those cleared either to a
            unit in a Free Trade Zone or to a hundred per cent H
    890                  SUPREME COURT REPORTS (2004] SUPP. 3 S.C.R.

A                      Export-Oriented Unit) on which the duty of excise is
                       leviable whether in whole or in part; and

                  (b) specified as inputs or as final product under a notification
                      issued under rule 57 A."
B
    The relevant portion of the Notification No. 217/86-CE dated 2nd April,
    1986 reads as follows:

                 "Inputs: Captive consumption exempt.

c                 217186-CE, dt. 2.4.1986, as amended by 12/87-CE, dt.
            23.1.1987 (w.e.f. 10.2.1987), 82/87-CE, dt. 1.3.1987, 204/87-CE,
            dt. 9.9.1987 (w.e.f. 1.10.1987), 97/89-CE, dt. 1.3.1989, 146/90-
            CE, dt. 17.9.1990, 79/91-CE, dt. 25.7.1991, 33/92-CE, dt. 1.3.1992:
            In exercise of the powers conferred by sub-rule (I) of rule 8 of
D           the Central Excise Rules, 1944, the Central Government hereby
            exempts goods specified in column (2) of the Table hereto
            annexed (hereinafter referred to as "inputs") manufactured in a
            factory and used within the factory ofproduction or in any other
            factory of the same manufacturer, in or in relation to the
E           manufacture offinal products specified in column (3) of the said
             Table, from the whole of the duty of excise leviable thereon, which
             is specified in the Schedule to the Central Excise Tariff Act, 1985
             (5 of 1986):

             Provided that nothing contained in this notification shall apply to
F            inputs used in or in relation to the manufacture of final products
             (other than those cleared either to a unit in a Free Trade Zone or
             to a 100% Export Oriented Unit), which are exempt from the
             whole of the duty of excise leviable thereon or are chargeable to
             "Nil" rate of duty:
G
             Provided further that where such use of inputs is in a factory of
             a manufacturer, different from his factory where the goods have
             been produced, the exemption contained in this notification shall
             be allowable subject to the observance of the procedure set out
H            in Ch~pter X of the Central Excise Rules, 1944.
                 ESCORTS LTD. v. C.C.E. [VARIAVA, J.]                       891

                                THE TABLE                                         A

S. No.    Description of inputs            Description of final products
  (1)                (2)                                  (3)

   I.    Goods classifiable under any      Goods classifiable under any           B
         headings of chapters 2, 3, 4,     headings of chapters 2, 3, 4, 5,
         5, 7, 8, 9, 11, 13, 14, 15, 16,   7, 8, 9, 11, 13, 14, 15, 16, 17, 18,
         17, 18, 19, 20, 21, 22, 23,       19,20,21,:::2,23,25,26,28,29,
         25, 26, 28, 29, 30, 31, 32,       30, 31, 32, 33, 34, 35, 36, 37, 38,
         33, 34, 35, 36, 37, 38, 39,       39,40,41,42,43,44,45,46,47,            c
         40, 41, 42, 43, 44, 45, 46,       48, 49, 54, 55, 59, 64, 65, 66, 67,
         47, 48, 49, 59, 64, 65, 66,       68, 69, 70, 71, 72, 73, 74, 75, 76,
         67, 68, 69, 70, 71, 72, 73,       78, 79, 80, 81, 82, 83, 84, 85, 86,
         74, 75, 76, 78, 79, 80, 81,       87, 88, 89, 90, 91, 92, 93, 94, 95     D
         82, 83, 84, 85, 86, 87, 88,       or 96 [other than those falling
         89, 90, 91, 92, 93, 94, 95 or     under Heading Nos. 36.05,
         96 [other than those falling      37.06, 54.08, 54.09, 54.10,
         under Heading Nos. 36.05          54.11, 54.12, 55.04, 55.05,
         or 37.06 of the Schedule to       55.06, 55.07, 55.08, 55.09,            E
         the Central Excise Tariff Act,    55.10, 55.11 or 55.12 of the
         1985 (5 of 1986)                  Schedule to the Central Excise
                                           Tariff Act, 1985 (5 of 1986)
                                                                                  F
                                                        (Emphasis supplied)

      It is the contention of the Respondent, which has been accepted by
CEGAT, that Rule 57C would become applicable as the parts are cleared
from one factory to another without payment of duty. In our view, this G
reasoning cannot be accepted. The underlined portion of the Notification,
set out hereinabove, shows that the inputs may be used within the factory
of production or in any other factory of the same manufacturer. Thus
merely because parts are cleared from one factory of the Appellants to
another factory does not make the parts the final product. It is not denied H.
    892                   SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A that the parts, which are manufactured from the duty paid inputs, are used
    in the manufacture of tractors and that the duty is being paid on the tractors.

          Mr. Lakshmikumaran very fairly conceded that in cases where the
    parts are cleared for sale in the open market or in cases where the parts
B   are used for manufacture of small tractors, on which no duty is paid, the
    Appellants do not and have not claimed any MODYAT credit. He states
    and it is not denied that in respect of such parts separate registers have been
    maintained.

          It is to be seen that the whole purpose of the Notification and the
C Rules is to streamline the process of payment of duty and to prevent the
    cascading effect if duty is levied both on the inputs and the finished goods.
    Rule 570(2), which has been extracted hereinabove, shows that in the
    manufacture of a final product an intermediate product may also come into
    existence. Thus in cases where intermediate product comes into existence,
D   even though no duty has been paid on the intermediate product as it is
    exempted from whole of the duty or is chargeable to Nil rate of duty, credit
    would still be allowed so long as duty is paid on the final product.

          In cases of manufacturers like the Appellants the final product is the
E   tractor. The intermediate product would be parts which are manufactured
    for being used in the tractor. In such a case the parts would not be the
    final product. Thus Rule 57C would have no application. The mere fact
    that the parts are cleared from one factory of the Appellants to another
    factory of the Appellants would not disentitle the Appellants from
F   claiming benefit of Notification No. 217/86-CE dated 2nd April, 1986. As
    stated above, the Notification itself clarifies that the inputs can be used
    within the factory of production or in any other factory of the same
    manufacturer.

          Mr. Lakshmikumaran relied upon the decision of this Court in the
G case of Collector ofCentral Excise, New Delhi v. Hindustan Sanitaryware
    & Industries reported in (2002) 145 E.L. T. 3 S.C., wherein, in respect of
    this very Notification, this Court has held that so long as duty is paid on
    the final product, the mere fact that duty was not paid on the intermediate
    product would not disentitle the manufacturer from the benefit ofNotification
H   No. 217 /86-CE dated 2nd April, 1986. In that case, the input was plaster
                       ESCORTS LTD. v. C.C.E. [VARIAVA, J.]                   893
'
 '·   of paris, the intermediate product was moulds made out of the plaster of A
      paris, the final product was sanitary ware. In our view, the facts of that
      case are identical to the facts of the present case. The ratio laid down therein
      fully applies to this case. In this view of the matter, we set aside the
      impugned Judgment and the Order of the Commissioner ,of Central Excise.
      It is held that the Appellants will be entitled to MODYAT credit on duties B
      paid for the inputs used for manufacture of parts, so long as the parts are
      used in the manufacture of tractors on which duty is paid. We clarify that
      in respect of parts which are sold in the open market and/or used for
      manufacture of tractors on which no duty is paid, the benefit of the
      Notification No. 217/86-CE dated 2nd April, 1986 may not be available. C

           The Appeals are thus allowed. There will be no order as to costs.

      v.s.s.                                                    Appeals allowed.