K. Sankararaman, Member (T)

1. The appeal by M/s. Associated Cement Companies Ltd., received by the Registry on 27-10-1988 arises from the order in appeal received by them on 26-7-1988. It is thus late by one day, the last day for filing the appeal being 26-10-1988. The delay has been explained by the learned consultant, Shri R.M. Das appearing on their behalf, as due to postal transit. They had sent the appeal by registered post from Bombay on 22-10-1988 and it is marginally late, by one day. He pleaded that the delay may be condoned and the appeal heard on merits.

2. Shri M.N. Biswas, learned SDR, has no objection. The request is allowed and the delay condoned.

3. The appeal is against the order in appeal passed by the Collector of Central Excise (Appeals), Calcutta, rejecting their appeal before him filed by their Khalari Cement Works challenging the decision of the Assistant Collector of Central Excise, Ranchi Division rejecting their application for availing modvat benefit in respect of various goods claimed to be used in or in relation to the manufacture of cement. The Collector (A) had partly allowed their appeal to the extent of granting the benefit only in respect of grinding media but dismissed their appeal otherwise. He has gone by his previous decision relating to another factory of theirs at Chaibasa and observed that as the issues were identical, he applied the same order. A copy of the said order was incorporated in his order which is the subject matter of the present appeal. A statement showing the products, the Chapter number under which they fall for classification and their use in or in relation to the manufacture of cement furnished by the appellants was also enclosed to the impugned order. The list is appended to this order with our findings on their eligibility for modvat benefit. The grounds on which the Collector (Appeals) had held the products in question to be ineligible for the benefit of modvat discussed in his earlier order in the appeal relating to their Chaibasa factory which have been adopted by him in his impugned order are as follows :

"While the appellants are manufacturers of cement, they want modvat of duty paid on some of the items like even tyres, tubes, iron and steel, angle, channels, used for general structural and maintenance purposes, railway construction materials, part and accessories of motor vehicles. There arc certain items which appear to be required for maintenance purpose. By no stretch of imagination such can be considered "inputs" used in or in relation to manufacture of cement".

4. In their appeal the appellants have submitted that modvat credit under Rule 57A would cover a much wider spectrum of excisable goods used than Notification No. 201/79 dt. 4-6-1979 and Rule 56A which limited the benefit to the duty paid on inputs and component parts. They had referred to the case of J.K. Cotton Spinning and Weaving Mills Company Ltd., v. Sales Tax Officer -1965 (16) STC 563 where the scope of the expression "used in the manufacture of" had been interpreted by the Hon'ble Supreme Court. In Rule 57 A the words are wider in scope and cover even goods used in relation to the manufacture. The restrictions on the admissibility of credit of duty paid on inputs is found in Rule 57A itself. They have been referred to the undermentioned judgments which followed the J.K. Cotton Spinning Weaving Mills Co. Ltd. case.

(1) Vasuki Carborundum Works v. State of Gujarat -1979 (43) STC 294 Gujarat High Court.

(2) Mercury Pharmaceutical Industries v. State of Gujarat -1979 (43) STC 301 Gujarat High Court.

(3) Indian Copper Corporation Ltd. v. Commissioner of Commercial Taxes, Bihar -MANU/SC/0320/1964 : 1965 (16) STC 259 S.C.

(4) Member, Board of Revenue v. Phelps Company Pvt. Ltd. -1972 (29) STC 101 Supreme Court.

(5) Avery India Ltd. v. Commercial Tax Officer -1983 (52) STC 297 Calcutta.

5. In the light of these judgments, they prayed that their declaration for Modvat credit be accepted and credit gr