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TMI Blog2009 (9) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and the goods which are not integrally connected with the process of manufacture resulting in utilization of such product directly or indirectly in the manufacture of the finished product, cannot be said to be input. Therefore, Oxygen, Helium and Acetylene gases used for repair and maintenance of plant and machinery are not covered by the definition of inputs. In view of the above discussion while I hold that Cenvat credit is eligible in respect of welding electrodes as capital goods, the Cenvat credit is not available in respect of Oxygen, Helium and Acetylene gases used for maintenance and repair of the plant and machinery. - E/2485-2488/2007-SM(BR) - 1190-1193/2009-SM (BR)(PB), - Dated:- 23-9-2009 - Shri Rakesh Kumar, Member (T) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ajasthan High Court in the case of Hindustan Zinc Ltd. (supra) it was held that welding electrodes would be eligible for Cenvat credit and that in this case it was also ob served that though the Tribunal in the case of SAIL v. CCE, Ranchi reported in 2008 (222) B. L.T. 233 had held that welding electrodes are not eligible for Cenvat credit and SLP filed by M/s. SAIL against this judgment of the Tribunal was dismissed by the Hon'ble Supreme Court, this dismissal of SLP being by a non-speaking order, does not lay down any law and would not be a binding precedent. Shri Garg also pleaded that welding electrodes are used as part of welding machine, which being classifiable under Heading 84.68 are covered by the definition of 'capital goods' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plant. However, welding electrodes is used as a part of the welding machine. The question to be decided in these cases is as to whether these items which are used for maintenance and repair of the plant and machinery would be eligible for Cenvat credit as inputs/capital goods or not. 4. Is Cenvat Credit admissible in respect of welding electodes as capital goods? 4.1 The question which was to be decided by the Hon'ble Rajasthan High Court in the case of Hindustan Zinc Ltd. (supra) was as to whether "welding electrodes" used for maintenance and repair of plant and machinery are eligible for Cenvat credit as capital goods as well as inputs. This question was decided by the Hon'ble Rajasthan High Court in favour of Hindustan Zinc Ltd. r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought to the notice of Hon'ble Rajasthan High Court and that this judgment has to be treated as a binding precedent, in view of Hon'ble Supreme Court's judgment in the case of Kunhayammed v. State of Kerala reported in 2001 (129) E.L.T. 11 (S.C.). In this regard the relevant portion of the Tribunal's judgment is reproduced below: "In the facts and circumstances of the case, therefore, though it cannot be said that the decision of the Hon'ble Rajasthan High Court has been over ruled by the Apex Court while dismissing the SLP in SAIL's case, fact remains that the Apex Court refused to interfere in the said decision for reason disclosed in the order dismissing the SLP, and hence bearing in mind the ruling of the Apex Court in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered by Clause (iii) of Rule 2(a) of Cenvat Credit Rules, 2004. 1, therefore, hold that welding electrodes are eligible for Cenvat credit as capital goods. 5. Eligibility of Oxygen, Acetylene and Helium gases, used for repair and maintenance of plant and machinery for Cenvat credit as inputs. 5.1 As regards the eligibility of Oxygen, Acetylene and Helium gases used for the purpose of maintenance and repair of plant and machinery, the same cannot be treated as inputs, as, held by Division Bench of this Tribunal in case of Vikram Cement (supra), only those goods which forms part of the process carried out by a manufacturer for converting raw material into finished goods can be considered as inputs and the goods which are not integral ..... X X X X Extracts X X X X X X X X Extracts X X X X
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