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TMI Blog2008 (12) TMI 500X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent. [Order]. The issue involved in this appeal is whether Cenvat credit can be availed on welding electrodes used for the purpose of repair and maintenance of capital goods (machinery). The dispute relates to the period April, 2006 to October, 2006 and the duty involved is Rs. 3,44,755/- and a penalty of Rs. 1,75,000/- has been imposed under Rule 5 of Cenvaf Credit Rules. The origi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble High Court relied upon the decision of the Hon ble Supreme Court in the case of CCE v. Jawahar Mills, 2001 (132) E.L.T. 3 (S.C.) = 2001 (45) RLT 739 (S.C.) and J.K. Cotton Spg. Wvg. Mills Co. Ltd. [1997 (91) E.L.T. 34 (S.C.) Reference was also invited to another decision of the Rajasthan High Court in the case of Union of India v. Hindustan Zinc Ltd., 2007 (214) E.L.T. 510 (Raj.) wherein th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e earlier period reported in 2008 (225) E.L.T. 222 (Tri.-Mum.) and Tribunal decision in the case of India Sugars and Refineries Ltd., 2006 (205) E.L.T. 517 (Tri.-Bang.) = 2006 (74) RLT 61 (CESTAT-Ban.), Manikgrah Cement, 2008-TIOL-43-CESTAT-Mum., ITC Ltd. v. C.C.Ex., 2008-TIOL-117-CESTAT-Bang. and CCE v. Andhra Sugars Ltd., 2006 (74) RLT 284 (CESTAT-Ban.). 3. The ld. DR, however, referred to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as stated in para 5 of the Tribunal s decision was that the machinery was not used in the production of the final products. Hence in these facts the Supreme Court dismissed the SAIL appeal. However, without prejudice to above, it was submitted that in any case the issue is one of interpretation where there have been contradictory views for and against the issue and therefore penalty is not impossi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be available on welding electrodes used for repairs and maintenance of machinery. However, since the matter is of interpretation where there are contradictory decisions by the Tribunal and the High Court, this is not a fit case for imposition of penalty and accordingly penalty imposed is set aside. The appeal is partly allowed. (Pronounced on 1-12-2008) - - TaxTMI - TMITax - Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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