2010 (1) TMI 522 - AT - Central Excise

Cenvat Capital goods - Disputing the claim of the appellants about entitlement to avail the Cenvat credit in relation to the welding electrodes and asbestos jointing sheets, a show cause notice dated 28-10-2005 came to be issued to the appellants requiring the appellants to show cause as to why the credit to the tune of Rs. 22,075/- in relation to the said items should not be disallowed and as to why the amount should not be recovered. Held that electrodes were consumable items which lost their identity and therefore not covered under definition of capital goods. Sheets were components/integral part of machinery, and assessee entitled to take credit of duty paid on them. They were capital goods covered under Rule 2(a)(A) of Cenvat Credit Rule.

Issues Involved:
1. Entitlement to Cenvat credit on welding electrodes.
2. Entitlement to Cenvat credit on asbestos jointing sheets.
3. Inclusion of M.S. Plates in the disputed Cenvat credit.
4. Justification for the imposition of penalty.

Detailed Analysis:

1. Entitlement to Cenvat Credit on Welding Electrodes:
The appellants claimed that welding electrodes were used for the repair and maintenance of plant and machinery and should be considered as "capital goods" under Rule 2(a)(A)(i) of the Cenvat Credit Rules, 2004. The authorities, however, found that welding electrodes are consumable items that lose their identity and existence upon use, thus not qualifying as "capital goods." The Tribunal upheld this view, stating that consumable items that lose their identity cannot be classified as capital goods. The Tribunal also referenced the definition of "capital goods" and concluded that welding electrodes do not meet the criteria set forth in the Cenvat Credit Rules, 2004.

2. Entitlement to Cenvat Credit on Asbestos Jointing Sheets:
The appellants argued that asbestos jointing sheets are components and accessories of sugar mills machinery and should be eligible for Cenvat credit. The Tribunal agreed with the appellants, referencing the decision in KCP Sugar & Indus. Ltd. v. CCE, Guntur, which established that asbestos packing/compressed asbestos fibers used to prevent leakage in pipes are integral parts of sugar machinery. Therefore, the Tribunal ruled that the authorities erred in disallowing Cenvat credit for asbestos jointing sheets.

3. Inclusion of M.S. Plates in the Disputed Cenvat Credit:
The appellants contended that the show cause notice did not mention M.S. Plates, and thus the amount of Rs. 3,350/- related to M.S. Plates should not have been included in the disputed Cenvat credit. The Tribunal found merit in this argument, noting that the show cause notice did not refer to M.S. Plates and that the lower authorities did not dispute the appellants' entitlement to Cenvat credit for M.S. Plates. Consequently, the Tribunal ruled that the amount of Rs. 3,350/- should be deducted from the total amount demanded.

4. Justification for the Imposition of Penalty:
The appellants argued that the imposition of a penalty was unjustified, given the divergent views expressed by the Tribunal on the entitlement to Cenvat credit for the items in question. The Tribunal agreed, noting that the existence of divergent views during the relevant period made the imposition of a penalty inappropriate. Therefore, the Tribunal quashed the penalty imposed by the adjudicating authority.

Conclusion:
The appeal was partly allowed. The Tribunal set aside the disallowance of Cenvat credit for asbestos jointing sheets and deducted the amount of Rs. 3,350/- related to M.S. Plates from the total demand. The penalty imposed was also quashed. However, the disallowance of Cenvat credit for welding electrodes was upheld. The impugned order was modified accordingly.

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