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CENVAT Rules, 2000-Central Excise Rules, 1944-Rules 57AA, 57AB and 57AC and erstwhile Rules 57A to 57J-CENVAT credit-On input used outside factory-Explosives (input) used in quarrying limestone which in turn used for manufacturing cement (final product) in factory situated at some distance away from the limestone mines-Held: Qualifies for CENVAT credit-Earlier decision in Jaypee Rewa Cement, that MODVAT was allowable on use of explosives in manufacture of cement irrespective of the fact that explosives were used directly in limestone mines and never entered factory of manufacturer of cement, equally applies to CENVAT Rules which replaced the MODVAT Rules-Scheme of CENVAT credit no different in substance from MODVAT Rules. Modified Value Added Tax Scheme (MODVAT) was introduced in 1986 granting credit of excise duty on inputs used in or in relation to the manufacture of final products. The scheme was contained in Rules 57A to 57J of the CentralExcise Rules, 1944. In *Jaypee Rewa Cement where the input in question was explosives used in quarrying limestone which in turn were used in manufacture of cement, a three Judges Bench of this Court had held that MODVAT was allowable on the use of explosives in manufacture of cement irrespective of the fact that explosives were used directly in limestone mines and never entered factory of the manufacturer of cement. The MODVAT Rules were subsequently replaced by the CENVAT Rules. A Division Bench of this Court in **J.K. Udaipur Udyog held that the decision in Jaypee Rewa Cement did not apply to the CENVAT Rules. That view was doubted by a Co-ordinate Bench of this Court whereupon a reference was made to the present three Judges Bench for deciding the question whether the decision in Jaypee Rewa Cement would continue to apply to the CENVAT Rules, 2000.=PETITIONER: M/s Vikram Cement RESPONDENT: Commnr. Of Central Excise, Indore= 2006 (Jan.Part ) judis.nic.in/supremecourt/filename=27426


 


CENVAT Rules, 2000-Central Excise Rules, 1944-Rules 57AA, 57AB and 57AC and erstwhile Rules 57A to 57J-CENVAT credit-On input used outside factory-Explosives (input) used in quarrying limestone which in turn used for manufacturing cement (final product) in factory situated at some distance away from the limestone mines-Held: Qualifies for CENVAT credit-Earlier decision in Jaypee Rewa Cement, that MODVAT was allowable on use of explosives in manufacture of cement irrespective of the fact that explosives were used directly in limestone mines and never entered factory of manufacturer of cement, equally applies to CENVAT Rules which replaced the MODVAT Rules-Scheme of CENVAT credit no different in substance from MODVAT Rules. Modified Value Added Tax Scheme (MODVAT) was introduced in 1986 granting credit of excise duty on inputs used in or in relation to the manufacture of final products. The scheme was contained in Rules 57A to 57J of the CentralExcise Rules, 1944. In *Jaypee Rewa Cement where the input in question was explosives used in quarrying limestone which in turn were used in manufacture of cement, a three Judges Bench of this Court had held that MODVAT was allowable on the use of explosives in manufacture of cement irrespective of the fact that explosives were used directly in limestone mines and never entered factory of the manufacturer of cement. The MODVAT Rules were subsequently replaced by the CENVAT Rules. A Division Bench of this Court in **J.K. Udaipur Udyog held that the decision in Jaypee Rewa Cement did not apply to the CENVAT Rules. That view was doubted by a Co-ordinate Bench of this Court whereupon a reference was made to the present three Judges Bench for deciding the question whether the decision in Jaypee Rewa Cement would continue to apply to the CENVAT Rules, 2000.
Citation: 2006(1 )SCR465 ,2006(2 )SCC351 ,2006(1 )SCALE327 ,2006(1 )JT385

Answering the reference, the Court HELD: 1.1. The schemes of MODVAT and CENVAT Credit are not different. [475-C] 1.2. Basically there was a re-arrangement of the earlier rules which in substance remained the same. [473-A-B] **Commissioner of Central Excise, Jaipur v. J.K. Udaipur Udyog Ltd., (2004) 171 ELT 289 SC, overruled. *Jaypee Rewa Cement v. CCE, (2001) (133) ELT 3 SC, referred to. 2.1. In J.K. Udaipur Udyog the Court answered the question, whether the explosives used for blasting purposes in the mines and which had not been used in the factory premises for production or in relation to the manufacture ofcement could qualify for CENVAT credit, in the negative. Three reasons were given by the Court for holding that credit could be taken only on inputs received in the factory of the manufacturer of the final product. [475-B; D-E] 2.2. First, the Court held that the definition of input given in sub-rule(d) of Rule 57AA was "entirely different from the manner in which the said word had been expounded in the explanation to Rule 57A of the MODVAT Rules". This reading of the provision is not acceptable. There was only a re-arrangement of the several provisions of Rule 57B in Rule 57AA. Rule 57AA is in fact more broad based than Rule 57B. Analyzed, it is clear that sub-rule (d) of Rule 57AA has merely reframed Rule 57B to include all the ingredients of inputs while at the same time broadening the base not only by referring to "all goods" but also by using the word "includes". [475-D-E; 473-D] 2.2. Second, the Court proceeded on the basis that under the CENVAT scheme there was no provision similar to Rule 57J. But in fact, Rule 57J was replaced in substance by Rule 57AB, which provision was overlooked. Deletion of Rule 57J of the MODVAT Rules had led to controversy and on 29th of August, 2000, a clarification was issued by the Central Board ofExcise and Customs (CBEC). Consequently, with the intention of re-introducing the benefit granted earlier under Rule 57J, Rule 57AB was introduced under the heading "CENVAT credit". Rule 57AB effectively duplicates the substance of Rule 57J(1) and (2) and deals with a situation where inputs are received by a job worker for production of intermediate goods which are used in the manufacture of a final product. [475-F; 473-F-G; 474-C, H; 475-A] 2.3. The third reason given by the Court in J.K. Udaipur Udyog for holding that the CENVAT Scheme was different from the MODVAT Scheme was Rule 57AC(1). However, that Rule is limited to inputs received in the factory of the manufacturer and does not impinge on Rule 57AB at all. [475-F-G] 3. Thus, the doubt expressed by the referring Bench about the correctness of the decision in J.K. Udaipur Udyog was well founded. Having regard to the fact that the CENVAT Rules in effect substitute the MODVAT Rules, the decision in Jaypee Rewa Cement would continue to apply. The decision in J.K. Udaipur Udyog holding to the contrary is not good law. [476-A-B] Joseph Vellapally, V. Lakshmikumaran, Alok Yadav, Rajesh Kumar, Sanjay Grover, Ms. Prabha Swami, Sudhir Gupta, S.S. Hussain Rizvi, M.P. Vinodh and R. Parthasarthy for the Appellants. Rajiv Dutta, T.A. Khan, Ms. Indu Sharma, Raghu Nath Kapur, Ms. Varuna Bhandari Gugnani, A.T. Rao, V.K. Verma and P. Parmeswaran for the Respondents.

2006 (Jan.Part ) judis.nic.in/supremecourt/filename=27426
RUMA PAL, B.N. SRIKRISHNA, DALVEER BHANDARI

CASE NO.:
Appeal (civil)  1197 of 2005

PETITIONER:
M/s Vikram Cement

RESPONDENT:
Commnr. Of Central Excise, Indore

DATE OF JUDGMENT: 18/01/2006

BENCH:
Ruma Pal, B.N. Srikrishna & Dalveer Bhandari

JUDGMENT:
J U D G M E N T
With
C.A.Nos.3422/2004 and 4149-4153/2004, 4120-4122/2004,
C.A Nos. 7175-7189/2004,  C.A Nos. 2318-2320/2005,  CA 
Nos. 1815, 6514, 1613, 6169-71, 6698 of 2005  and
SLP (C)No.23205/2003 & SLP (C) No.19603/2005)

RUMA PAL, J.

The question whether the decision in Jaypee Rewa 
Cement Vs. CCE 2001 (133) ELT 3 SC would apply to the 
CENVAT Rules 2000 framed under the Central Excise Tariff 
Act 1985 (referred to as the 'Act') is to be decided on a 
reference made in this case. A Bench of two judges of this 
Court in Commissioner of Central Excise, Jaipur Vs. J.K. 
Udaipur Udyog Ltd 2004 (171) ELT 289 SC held that Jaypee 
Rewa Cement  did not apply to the CENVAT Rules. The view  
was doubted in this case by a Bench of coordinate strength  
which referred the following question to us:-
"In the light of the provisions of the 
Cenvat scheme vis-`-vis Modvat scheme 
reproduced  hereinabove, we are of the 
view that the observations made in 
paragraph 9 of the decision of the 
Division Bench, quoted above, in the case 
of Commissioner of Central Excise, 
Jaipur vs. J.K. Udaipur Udyog Ltd. 
reported in 2004 (171) ELT 289 needs 
reconsideration".

  The reference was made in the factual context of the 
appellants availing of CENVAT credit on explosives and other 
inputs used in quarrying limestone, which was in turn used 
for the manufacture of cement and clinkers, which are 
classifiable under Chapter 25.  The limestone mines of the 
appellants are situated at some distance away from the factory 
premises of the appellants.  The Adjudicating Authority held 
that the appellants were not entitled to the credit availed of by 
the appellants and raised a demand for excise duty only on the 
explosives.  The narrower question raised in this appeal 
therefore is whether the adjudicating authority was correct in 
denying  the appellants the CENVAT credit on the inputs.
On the broader question, namely, whether there is a 
difference in substance between the MODVAT and the 
CENVAT schemes, Modified Value Added Tax Scheme 
(MODVAT)  was introduced in 1986 granting credit of excise 
duties used in or in relation to the manufacture of final 
products. The scheme was contained in Rules 57A to 57J of 
the Central Excise Rules, 1944 (referred to as the 'Rules'). We 
set out below the relevant extracts of these Rules:-
"Rule 57A - Applicability.

(1) xxxx     xxxx          xxxx    
(2) xxxx   xxxx         xxxx   
(3) xxxx       xxxx         xxxx   

(4) The credit of specified duty under this 
section shall be allowed on inputs used in 
the manufacture of final products as well 
as on inputs used in or in relation to the 
manufacture of the final products 
whether directly or indirectly and 
whether contained in the final product or 
not.

Rule 57B. Eligibility of credit of duty 
on certain inputs (1) Notwithstanding 
anything contained in Rule 57A, the 
manufacturer of final products shall be 
allowed to take credit of the specified 
duty paid on the following (inputs), used 
in or in relation to the manufacture of the 
final products, whether directly or 
indirectly and whether contained in the 
final products or not, namely:-

(i) inputs which are manufactured and 
used within  the factory of 
production;
(ii) paints;
(iii) inputs used as fuel;
(iv) inputs used for generation of 
electricity or steam, used for 
manufacture of final products or for 
any other purpose, within the 
factory of production;

(v) packing materials and materials 
from which such packing materials 
are made provided the cost of such 
packing materials is included in the 
value of the final product;

(vi) accessories of the final product 
cleared alongwith such final 
product, the value of which is 
included in the assessable value  of 
the final product.

Explanation.- For the purposes of this 
sub-rule, it is hereby clarified that the 
term 'inputs' refers only to such inputs as 
may be specified in a notification used 
under Rule 57A". {Emphasis supplied}

     We observe that Rule 57B commences with a non 
obstante clause. It allows credit to be taken  by a  
manufacturer on inputs used in or in relation to the 
manufacture of the final products whether directly or 
indirectly and whether contained in the final products or not. 
There is no qualification as to where the inputs must be used 
in the main body of sub-rule (1).  Qualifications have been 
introduced to the extent stated in Clauses (i) to (vi) read with 
the Explanation.  Thus clause (i) provides for inputs which are 
manufactured and used within the factory of production. 
Paints, fuel, packing materials and accessories are also treated 
as inputs under clauses (ii), (iii), (v) and (iv) without any 
requirement for user within the factory.  Clause (iv) provides 
for credit on inputs used for generation of electricity or steam 
used for manufacture of the final products or for any other 
purposes "within the factory of production".  It appears to us 
on a plain reading of the clause that the phrase "within the 
factory of production" means only such generation of 
electricity or steam which is used within the factory would 
qualify as an intermediate product.  The utilization of inputs 
in the generation of steam or electricity not being qualified by 
the phrase "within the factory of production" could be outside 
the factory.  Therefore, whatever goes into generation of 
electricity or steam which is used within the factory would be 
an input for the purposes of obtaining credit on the duty 
payable thereon.  As far as the Explanation is concerned, the 
inputs are restricted to inputs notified under Rule 57A.  There 
is no dispute that both explosives and limestone are notified 
under Section 57A for manufacture of the final product viz. 
cement. 
The next relevant rule is Rule 57F. What we are 
concerned with is  sub-rule (4) of Rule 57F. This provides:
"(4) The inputs can also be removed as 
such or after they have been partially 
processed by the manufacturer of the 
final products to a place outside his 
factory under the cover of a challan 
specified in this behalf by the Central 
Board of Excise and Customs, for the 
purposes of test, repair, refining, re-
conditioning or carrying out any other 
operation necessary for the manufacture 
of the final products or for manufacture 
of intermediate products necessary for 
the manufacture of final products and 
return the same to his factory".

Therefore credit on inputs sent by a manufacturer from 
the factory to a job worker for test, repair etc. but ultimately 
utilized in the final product, is allowable.
Then comes Rule 57J which, in so far as it is material, 
reads:-
Rule 57J. Credit of duty in respect of 
inputs used in an intermediate 
product. (1) Notwithstanding anything 
contained in these rules, the 
manufacturer shall be allowed to take 
credit of the specified duty paid on inputs 
described in column (2) of the Table 
below and used in the manufacture of 
intermediate products described in 
column (3) of the said Table received  by 
the said manufacturer for use in or in 
relation to the  manufacture of final 
products described in the corresponding 
entry in column (4) of the said Table."

"(2) The manufacturer of final products 
shall take credit under sub-rule (1) only if 
the intermediate products are 
manufactured in a factory as a job work 
in respect of which the exemption 
contained in the notification of the 
Government of India in the Ministry of 
Finance (Department of Revenue) 
No.214/86-Central Excises, dated the 
25th March, 1986 has been availed of".

(3) xxx xxx xxx xxx      

                             {Emphasis supplied}


  This Rule allows credit on inputs used in manufacture 
of intermediate products described in column 3 of the Table 
provided the intermediate products are received by the 
manufacturer for use in or in relation to the manufacture of 
final products described in the corresponding entry in column 
4 of the Table. Explosives, limestone and cement are 
admittedly covered by columns 1,2 and 3 respectively of the 
Table.  
It may be noted at this stage that Rule 57J(2) was 
explained by a Trade Notice No.38/1999 dated 2nd April, 1991 
issued by the Bombay Collectorate. It was said :-
"the basic aim of the MODVAT Scheme is 
to avoid the cascading effect of duties on 
a product.  Therefore, the scheme permits 
MODVAT credit on all goods forming a 
part of the final product, though the final 
product may be manufactured in several 
stages, provided duty is paid at  each 
stage of the manufacturing chain.

However, to ensure an unbroken chain of 
MODVAT, rule 57J has been incorporated 
under the MODVAT Scheme so as to 
extend credit of duty on certain inputs, 
even in respect of exempted intermediate 
products (notified under Notification 
No.351/86. C.E., dated 20.6.1986) which 
are brought from outside.  However, one 
of the provisions of this notification 
requires that the intermediate products 
should be manufactured in a factory as a 
job work and exemption contained in 
Notification No.214/86-C.E. dated 
25.3.1986 should have been availed in 
respect of them.  Thus, it may be 
observed that rule 57J grants limited 
flexibility of job work.  The rule merely 
requires that the unit availing this facility 
should be a job worker in terms of 
Notification No.214/86-C.E. A 
manufacturing unit of the same 
manufacturer can also be a job worker.  
Therefore, so far as the aforesaid 
manufacturing  unit is job worker, it 
would also be eligible  for credit under 
rule 57J".

We do not, for the purpose of this reference, discuss Rule 
57Q which deals with credit on capital goods used as inputs.
The question whether it was necessary for inputs to be 
used within the factory premises where the manufacture as 
defined in Rule 57AB of final products takes place for the 
purposes of availing of credit, came up before a Bench of three 
Judges in the case of Jaypee Rewa Cement Vs. CCE (supra).  
As in this case, in that case the input in question was 
explosives which were used in quarrying limestone used in the 
manufacture of cement.  The Court came to the conclusion on 
a consideration of the Rules which we have already quoted, 
that sub-rule (1) of Rule 57A did not in any way specify that 
the inputs have to be  utilized within the factory premises.  
The Tribunal had relied upon Rule 57F in coming to the 
conclusion that the inputs in respect of which credit of duty 
was claimed must be those which were used in or brought in 
to the factory premises. In reversing the decision of the 
Tribunal this Court observed that:-
"The Tribunal, however, has not referred 
to the provisions of Rule 57J, the opening 
portion of which makes it clear that the 
said Rule will be applicable 
notwithstanding anything contained in 
the other Rules.  According to Rule 57J, 
when the Central Government by 
notification specified the inputs used in 
the manufacture of intermediate products 
received by the manufacturer for use in 
or in relation to the manufacture of final 
product, then all such products on which 
duty has been paid credit will be 
allowed .

Explosives would fall under column (2) 
being a tariff item in Chapter 36; the 
intermediate product, namely, lime stone 
would fall under column 3 being covered 
by Chapter 25; and the final product, 
namely, cement would also fall under 
Chapter 25 and would fall under column 
4.  The reading of Rule 57J along with the 
aforesaid notification can leave no 
manner of doubt that even in respect of 
inputs used in the manufacture of 
intermediate product which product is 
then used for the manufacture of a final 
product.  The manufacturer would be  
allowed credit on the duty paid in respect 
of the input. On the explosives a duty 
had been paid and the appellants would 
be entitled to claim credit because  the 
explosives were used for the manufacture 
of the intermediate product, namely, lime 
stone which, in turn, was used for the 
manufacture of cement".

The appeal of the manufacturer was accordingly allowed 
and it was held that the MODVAT was allowable  on the use of 
the explosives in the manufacture of cement irrespective of the  
fact that  the explosives were used directly in the mines and 
never entered the factory of the manufacturer of cement.
In 2000 the MODVAT Rules were replaced by the 
CENVAT Rules by the Central Excise (2nd Amendment) Rules 
2000. Basically there was a re-arrangement of the earlier rules 
which in substance remained the same.  Thus Rule 57AA 
defined inputs as :-
"input" means all goods, except high 
speed diesel oil and motor spirit, 
commonly known as petrol, used in or in 
relation to the manufacture of final 
products whether directly or indirectly 
and whether contained in the final 
product or not and includes accessories 
of the final products cleared along with 
the final products, goods used as paint, 
or as packing material, or as fuel, or  for 
generation of electricity or stem used for 
manufacture of final products or for any 
other purpose within the factory of 
production and also includes lubricating 
oils, greases, cutting oils and coolants. 
                                {Emphasis supplied}

Analyzed, it is clear that sub-rule (d) of Rule 57AA has 
merely reframed Rule 57B to include all the ingredients of 
inputs while at the same time broadening the base not only by 
referring to "all goods" but also by using the word "includes".  
Rule 57AC  provides for the conditions for allowing 
CENVAT credit in respect of inputs received in the factory of 
the manufacturer. Sub-rule (1) of Rule 57AC which was relied 
on in J.K. Udaipur Udyog  to differ from the conclusion in 
Jaypee Rewa Cement reads:-
"Rule 57AC. Conditions for allowing 
CENVAT credit.- (1) The CENVAT credit 
in respect of inputs may be taken 
immediately on receipt of the inputs in 
the factory of the manufacturer".

Rule 57 J of the MODVAT Rules was deleted. This led to  
controversy and on 29th of August, 2000, a clarification was 
issued by the Central Board of Excise and Customs (CBEC) 
inter alia to the effect that:-
"It has been represented  that when the 
inputs are sent directly to a job worker, 
the erstwhile MODVAT credit scheme 
permitted availment of MODVAT credit 
under Rule 57J read with the Notification 
No.214/86-C.E. as amended. Several 
associations have requested that similar 
provision may be made in the CENVAT 
scheme. This request has been acceded 
to and Rule 57AB(1) has been amended 
suitably for this purpose.  The amended 
provisions of Rule 57AB (1) apply to 
goods received in the factory on or after 
1st April, 2000. Credit is therefore 
permissible in respect of intermediate 
goods received from a job worker on or 
after 1.4.2000. Credit shall,  of course, be 
allowed only if the intermediate products 
received by the manufacturer of the said 
final products are accompanied by any of 
the documents as specified under rule 
57AE(1) evidencing the payment of duty 
on such inputs of capital goods". 
                                {Emphasis supplied}

Consequently, with the intention of re-introducing the 
benefit granted earlier under Rule 57J, Rule 57AB was 
introduced under the heading "CENVAT credit".  The material 
extracts of Rule 57AB reads as follows:-
57AB(1) A manufacturer or producer of 
final products shall be allowed to take 
credit (hereinafter  referred to as the 
CENVAT credit) of.

(i) the duty of excise specified in the 
First Schedule to the Central Excise 
Tariff Act, 1985 (hereinafter referred 
to as the said First Schedule) , 
leviable under the Act;

(ii) xxx xxx xxx xxx 
(iii) Xxx xxx xxx xxx
(iv) Xxx xxx xxx xxx
(v) Xxx xxx xxx xxx 
paid on any inputs or capital goods 
received in the factory on or after the first 
day of March, 2001, including, the said 
duties paid on any inputs or capital 
goods used in the manufacture of 
intermediate products, by a job worker 
availing the benefit of exemption specified  
in the notification of the Government of 
India in the Ministry of 
Finance(Department of Revenue) 
No.214/86.  Central Excise, dated the 
25th March, 1986, published in the 
Gazette of India vide number GSR 547(E), 
dated the 25th March, 1986, and received 
by the manufacturer for use in or in 
relation to the manufacture of final 
products, on or after the first day of 
March, 2001." {Emphasis supplied}

Rule 57AB effectively duplicates the substance of Rule 
57J (1) and (2) and deals with a situation where inputs are 
received by a job worker for production of intermediate goods 
which are used in the manufacture of a final product.
In this background, the question arose in the case of 
Commissioner of Central Excise, Jaipur Vs. J.K. Udaipur 
Udyog Limited (supra) whether the explosives used for 
blasting purposes in the mines and which had not been used 
in the factory premises for production or in relation to the 
manufacture of cement could qualify for CENVAT credit.
The Court answered the question in the negative and in 
paragraph 9 of the judgment as reported said:-
"The scheme for MODVAT and CENVAT 
Credits being different and in view of the 
definition of "input" given in sub-rule (d) 
of Rule 57AA of the Rules and the 
omission of a Rule similar to Rule 57J, 
the ratio of Jaypee Rewa Cement (supra) 
can have no application here".

Three reasons were given by the Court for holding that 
credit could be taken only on inputs received in the factory of 
the manufacturer of the final product.  First, the Court held 
that the definition of input given in sub-rule (d) of Rule 57AA 
was "entirely different from the manner in which the said word 
had been expounded in the explanation to Rule 57A of the 
MODVAT Rules".  We cannot agree with this reading of the 
Section.  As we have said there was only a re-arrangement of 
the several provisions of Rule 57B in Rule 57AA. Rule 57AA is 
in fact more broadbased than Rule 57B.  
Second, the Court proceeded on the basis that under the 
CENVAT scheme there was no provision similar to Rule 57J of 
the MODVAT scheme.  As we have seen, Rule 57J was 
replaced in substance by Rule 57AB. This provision was 
overlooked.
The third reason given by the Court in J.K. Udaipur 
Udyog  for holding that the CENVAT Scheme was different 
from the MODVAT Scheme was Rule 57AC(1).  However, that 
Rule is limited to inputs received in the factory of the 
manufacturer and does not impinge on Rule 57AB at all. 
 The schemes of MODVAT and CENVAT Credit are not 
therefore different  and we are unable to agree with the 
conclusion of the Court in J.K. Udaipur Udyog that the 
decision in Jaypee Rewa Cement (supra) would have no 
application to CENVAT Rules.  
In our opinion the doubt expressed by the referring 
Bench about the correctness of the decision in CCE Vs. J.K. 
Udaipur Udyog Limited (supra) was well founded.  Having 
regard to the fact that the CENVAT Rules in effect substitute 
the MODVAT Rules, the decision in Jaypee Rewa Cement 
would continue to apply.  The decision in Commissioner of 
Central Excise, Jaipur Vs. J.K. Udaipur Udyog Limited 
(supra) holding to the contrary is, in our opinion, not good 
law.  The reference is answered accordingly.  All the appeals 
and special leave petitions will now be listed for being disposed 
of in the light of this judgment.



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