1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- OTHER TAX REF. CIVIL No. 18 of 2003 U.O.I. V/S MS. ADITYA CEMENT & ANR Mr. VIVEK SHRIMALI & Mr. RAVI BHANSALI, for the appellant / petitioner Mr. RAMIT MEHTA, for the respondent Date of Order : 27.3.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI DEO NARAYAN THANVI,J. ORDER ----- This reference application was admitted vide order dated 29.5.2003. The Revenue submits the question of law being, as to whether Tribunal is correct in allowing modvat credit on parts/components of D.G. Set to assessee, who is not a manufacturer of the D.G. Set as it was commissioned/erected by another person, who in fact received and used the parts/components of D.G. Set. The other question being, whether the assessee are entitled for credit on parts/components of D.G. Set when they have received a complete D.G. Set from their supplier on which on excise duty was discharged by the supplier, do arise out of the impugned order of the learned Tribunal. 2 The necessary facts are that the learned Commissioner vide order dated 31.7.2000 disallowed a modvat credit to the respondent, by holding, that the assessee had irregularly availed the modvat credit. It was found that assessee had received parts/components of D.G. Sets in question, and availed modvat credit. In the declaration filed by the assessee during the relevant period apart from description of capital goods, the assessee declared cement and clinkers as final product, and in the remark column of the declaration they mentioned that “to be used in the factory/to be used in the D.G. Set of the plant/components parts of D.G. Set/spare parts of D.G. Set”. It was found that the assessee had not brought the factual position to the notice of the department at any stage, that parts/components so received by them actually belonged to M/s.Wartsil Diesel India Ltd. (WDIL), and that, said parts only had been used by M/s.WDIL for erection/assembling of the D.G. Sets at their factory premises, and that, they have intentionally instructed the suppliers to show the invoice in their name instead of M/s.WDIL, to whom the actually goods belonged, to facilitate to take modvat credit. The assessee disclosed the facts of assembling and commissioning of D.G. Set by M/s.WDIL vide their letter dated 18.9.98 only, on inquiry made by the Jurisdictional Superintendent, and therefore, it was found that the assessee has irregularly availed modvat credit. 3 The learned Tribunal in appeal found that it remains undisputed, that the components of the D.G. Set received by the assessee were covered by the definition of capital goods in terms of Rule 57Q, and the documents through which the components were received, were drawn in their favour, and duty in respect thereof was paid by them. Then it was held, that the issue as to whether they could claim modvat credit in respect of the components, already stands covered in their favour, by decision of the Tribunal in the case of Gujarat Ambuja Cement Vs. CCE reported in 2000(93) ECR-226, in which case also, the order was placed for D.G. Set by the assessee on the same M/s.WDIL, and components were received by them through invoices issued in their name, and they paid duty. In that case, the Tribunal observed, that the assessee is entitled to claim the modvat credit of the duty paid on the components. It was also considered, that this judgment was followed in the case of NRC Ltd. and Century Rayon reported in 2001(46) RLT 609, and it was also found, that the departmental representative has not been able to cite any contrary judgment of the Tribunal, or any other High Court. While arguing the appeal, we also did put a specific question to the learned counsel for the appellant, as to whether these judgments in cases of Gujarat Ambuja Cement, NRC Ltd. and Century Rayon had been set aside, or not, and as to whether there is any other judgment of any 4 other High Court, or even Tribunal, taking any contrary view but the learned counsel for the appellant could not point out either. In our view, when the learned Tribunal has followed the consistent practice, as laid down in the various judgments, and there is no contrary judgment, shown, it cannot be said that any substantial questions of law arise, as claimed. The application for reference is, therefore, dismissed. ( DEO NARAYAN THANVI ),J. ( N P GUPTA ),J. /tarun/