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TMI Blog2007 (3) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... the Larger Bench judgment rendered in the case of Triveni Engg. Industries Ltd. v.. CCE, Meerut - 2005 (186) E.L.T. 158 (Tri.-LB). 2. The learned Advocates contentions is that this judgment is rendered per curiam to the ruling rendered in the case of India Sugars and Refineries Ltd. v. CCE, Bangalore - [2006 (74) RLT 61 (CESTAT-Ban.) = 2006 (205) E.L.T. 717 (T)] which has referred to 3-Member Larger Bench judgment of the Tribunal in the case of Jaypee Rewa Plant v. CCE, Raipur - [2003 (57) RLT 739 = 2003 (159) E.L.T. 553 (T.LB)]; Mira Silk Mills v. CCE, Mumbai - [2003 (56) RLT 152 (LB) = 2003 (153) E.L.T. 686 (T-LB)]; CCE, Meerut-I v. Modi Rubber Ltd. - [2000 (38) RLT 718 (LB) = 2000 (119) E.L.T. 197 (Tri-LB)]; Union Carbide India Ltd. v. CCE, Calcutta-I - [1996 (15) RLT 144 (T) = 1996 (86) E.L.T. 613 (T)], Punjab Haryana High Court ruling rendered on this very issue in the case of CCE, Chandigarh-II v. National Fertilizers Ltd., Bathinda Anr. - [2002 (79) ECC 758 (P H) = 2002 (140) E.L.T. 372 (P H)] and the following supreme Court judgments. (a) CCE, Calcutta-II v. Eastend Paper Industries Ltd. - AIR 1990 SC 1893 (b) Indian Farmers Fertilizers Co-operative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia Sugars and Refineries Ltd. (supra). 2.3 The learned Advocate Shri Shivadass arguing for M/s. Rashtriya Ispat Nigam Limited (RINL) also pointed out that one more issue is involved in their case inasmuch as Cenvat credit has been denied on gasses as well as on inputs used in manufacture of capital goods which were in turn used in the factory for production. He refers to the Board s Circular No. 31/90-CX.8, dated 31-5-1990 and the Larger Bench judgment rendered in the case of CCE v. Modi Rubber Ltd. - 2000 (119) E.L.T. 197 (LB) and Jaypee Rewa Plant v. CCE - 2003 (57) RLT 739 = 2003 (159) E.L.T. 553 (Tri-LB). He submitted that inputs used for manufacture of capital goods are covered by Explanation Rule 2 to Rule 2 of Cenvat Credit Rules, 2002 and credit cannot be denied. Likewise, credit on capital goods is covered by the definition in Rule 2 (b)(i) of Cenvat Credit Rules, 2002 and so also with regard to the second instalment of capital goods utilized. He also submitted that credit on gases is covered by the Board s circular and the citations referred to. Therefore, he submits that appeal is also required to be allowed. 3. The learned JCDR arguing for the revenue contended tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth process of manufacture of final products. It has been held that lubrication of the machinery is an activity which is concerned with or pertaining to the manufacture of the finished products. It has further been held that it is rather integrally connected with the manufacture and that the use of lubricants in the machinery is certainly in or in relation to the manufacture of the finished products. This reasoning should have been adopted in Jaypee Rewa Plant but the very Member who wrote the order in CCE v. Modi Rubber Ltd., has given a different interpretation in Jaypee Rewa Plant. In order to resolve the controversy, the matter is required to be again referred to still Larger Bench but, however, in terms of Larger Bench judgment rendered in the case of Mira Silk Mills v. CCE comprising of same Members as in the case of Jaypee Rewa Plant, wherein it has taken a view that when the Tribunal takes a decision without referring to case-law, then it would be an error apparent on the face of the record in terms of Apex Court judgment rendered in the case of Dokka Samuel v. Dr. Jacob Lazarus Chelly - 1997 (4) SCC 478. It has also held that the High Court decision will prevail over the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h ammonia to be entitled to the said exemption. The same view was also expressed by the Apex Court in M/s. Steel Authority of India Ltd. Etc. v. Collector of Central Excise, AIR 1996 Supreme Court 2544. 8. As a sequel to the above discussion, it is held that the furnace oil, which was used in the manufacture of steam, which in turn was further used in the generation of electricity during the shut-down period, was entitled to the concessional rate of duty. 9. In the end result, the reference petition filed by the revenue is dismissed in limine. 5. As can be seen from the above finding that for the effective running of any Plant, maintenance and overhauling of the machinery is necessary and it is an integral part in the process of manufacture. The Punjab Haryana High Court has referred to earlier two Supreme Court judgments (i) CCE v. Eastend Paper Industries Ltd. and (ii) Indian Farmers Fertilizers Cooperative Ltd. v. CCE. The ratio of the Punjab Haryana High Court, and the other two Supreme Court judgments noted therein, have not been referred to by the Larger Bench in the case of Jaypee Rewa Plant. Thus the findings rendered in the case of Jaypee Rewa Plant, denying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d supra, which in turn refers to two Supreme Court judgments, and by following the ratio of the Larger Bench judgments rendered in Modi Rubber Ltd. and Union Carbide Ltd., the appellant s plea is required to be accepted. The inputs viz. Welding Electrodes, Oxygen Gas and Acetylene Gas used for welding the punctured pipes carrying the hot sugar juice should be treated as part of process of manufacture and hence they are eligible inputs for the manufacture of the final product. The appeal is allowed with consequential relief, if any. 4.1 As can be seen from the above extraction that the issue is fully discussed in the light of the Supreme Court judgments and High Court judgments, therefore, the judgment cited by learned JCDR that is in the case of Triven Engg. Industries Ltd. does not discuss the issue in detail and has not dealt with earlier judgments of Supreme Court, High Courts and Tribunals. Therefore, the contention raised by the counsels that the Larger Bench judgment of Triveni Engg. and Industries Ltd. (supra) has been referred as per curiam to the judgments of Supreme Court, High Court and Larger Bench of Tribunal is a correct point and is upheld. Furthermore, the judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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