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2013 (6) TMI 615 - AT - Central ExciseCenvat Credit - welding electrodes - Held that - . Though the Hon ble Andhra Pradesh in the case of Sree Rayalaseema Hi-strength Hypo Ltd. (2012 (11) TMI 255 - ANDHRA PRADESH HIGH COURT) has taken a contrary view observing that the repair and maintenance is an activity distinct from manufacture and inputs used for repair and maintenance of plant and machinery would not be eligible for cenvat credit, the other High Courts have, as mentioned above, have held that welding electrodes used for repair and maintenance of the plant and machinery would be eligible for cenvat credit. Hon ble Rajasthan High Court in the case of Hindustan Zinc Ltd. Vs. Union of India 2006 (5) TMI 44 - HIGH COURT RAJASTHAN in which it was held that steel items used for repair and maintenance would be eligible for cenvat credit, has been upheld by the Apex Court as civil appeal filed by the Government against this judgement of Hon ble Rajasthan High Court had been dismissed. Besides this, Hon ble this Hon ble Chhattisgarh High Court in the case of Ambuja Cement Eastern Ltd. (2010 (4) TMI 429 - CHHAITISGARH HIGH COURT) has also discussed the judgement of the Tribunal in the case of Steel Authority of India Ltd.Vs. CCE and Apex Court s order dismissing the SLP appeal against the same and has observed that the Tribunal s judgement is not correct and that the dismissal of SLP without giving any reasons does not lay down any law. - Credit allowed.
Issues:
Whether welding electrodes used for repair and maintenance of plant and machinery are eligible for cenvat credit. Analysis: The appellant, a manufacturer of sugar chargeable to central excise duty, was involved in a dispute regarding the eligibility of cenvat credit for welding electrodes used for repair and maintenance of plant and machinery. The department contended that such welding electrodes were not eligible for cenvat credit and issued show cause notices for recovery of the credit, interest, and penalties. The original adjudicating authority confirmed the demand for cenvat credit along with interest and imposed penalties. Subsequently, appeals were filed to the Commissioner (Appeals), who upheld the orders except for setting aside the penalties. The appellant then filed appeals against these orders. During the proceedings, the appellant's counsel cited judgments from various High Courts, including the Chhattisgarh High Court, Rajasthan High Court, and Karnataka High Court, in support of the appellant's position. The Departmental Representative, on the other hand, supported the impugned order and referenced a decision from the Andhra Pradesh High Court. The presiding judge considered the submissions and records, noting the conflicting views among different High Courts on the issue. While the Andhra Pradesh High Court held that inputs used for repair and maintenance would not be eligible for cenvat credit, other High Courts, including Rajasthan and Karnataka, had ruled in favor of allowing cenvat credit for welding electrodes used in repair and maintenance activities. The judge highlighted a judgment from the Rajasthan High Court, upheld by the Apex Court, which supported the eligibility of steel items used for repair and maintenance for cenvat credit. Additionally, the judge referenced the Chhattisgarh High Court's observation that the Tribunal's judgment on a similar matter was incorrect and that the dismissal of a Special Leave Petition (SLP) by the Apex Court did not establish any legal precedent. Considering these factors, the judge concluded that the decisions of the Chhattisgarh, Rajasthan, and Karnataka High Courts should be followed in this case. Consequently, the impugned orders-in-appeal were deemed unsustainable and set aside, leading to the allowance of the appeals filed by the appellant.
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