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TMI Blog2009 (3) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the respondents on the ground that they were not entitled for Cenvat credit on Oxygen, Nitrogen and Welding Electrodes. The reason is that they are not covered by the definition of 'inputs' as defined in Rule 2 of CENVAT Credit Rules, 2004. It was also held that they could not be considered as capital goods. The Original Authority, after examining the matter, dropped the proceedings. Revenue went in appeal to the Commissioner (Appeals). The Commissioner (Appeals), by relying on the following decisions, has held that all the impugned items are entitled for Cenvat credit. (i) J.K. Cement Works v. CCE, Jaipur - 2000 (116) E.L.T. 52 (T) (ii) Rosa Sugar Works v. CCE, Kanpur - 2001 (131) E.L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etc., but it does not include Chapter 28 in which Oxygen, Nitrogen are classified and also Chapter 83 in which Welding Electrodes are classified. The impugned goods, namely, Oxygen, Nitrogen, and Welding electrodes, cannot be considered as components, spares and accessories to the goods falling under Chapters 82, 84, 85, 90 etc. In view of the position as explained above, the subject goods cannot be considered even as 'capital goods'. (ii) The Commissioner (Appeals) allowed the credit on the subject goods as these are used for repair/maintenance of plant and machinery. Thus, he allowed the credit treating them as capital goods. He has relied on a number of case laws including the Hon'ble Supreme Court decision in the case of CCE, Coi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an be machines, machinery, plant, equipment, apparatus, tools or appliances. Any of these goods if used for producing or processing of any goods or for bringing about any change in any substance for the manufacture of final product would be 'Capital goods' and therefore qualify' for availing Modvat credit. As per clause (b), the components, spare parts and accessories of the goods mentioned in clause (a) used for the purposes enumerated therein would also be 'Capital Goods' and qualify for Modvat credit entitlement. Clause (c) makes moulds and dies, generating sets and weigh bridges used in the factory of the manufacturers as 'Capital goods' and thus qualify for availing Modvat credit. The goods enumerated in Clause (c) need not be used for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; All goods falling under Chapter 82, Chapter 84, Chapter 85, Chapter 90 (heading 6802 and sub-heading No. 6810.10 of the First Schedule to the Excise Tariff Act; (ii) pollution control equipment; (iii) components, spares and accessories of the goods specified at (i) and ii); (iv) moulds and dies, jigs and fixures; (v) refractories and refractory materials; (vi) tubes and pipes and fittings thereof; and (vii) storage tank As sheets, angles, channels and plates are used to replace the damaged part of the machinery [which falls under any of the chapters etc. specified in Serial No (i) above] under repair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 003 (159) E.L.T. 553 (Tri.-L.B.) 5. We have considered the submissions carefully. The issue of Cenvat credit on Welding Electrodes, Oxygen and Acetylene gas used for maintenance was the subject matter of the appeal in the case of India Sugars and Refineries Ltd. v. CCE, Bangalore - 2006 (205) E.L.T. 717 (Tri.-Bang.) wherein this Tribunal had examined the issue in depth and came to the conclusion that all the impugned items are entitled for Cenvat credit. Further, it is seen that this issue had already been considered in the Final Orders (cited supra) of this Bench relied on by the learned Commissioner (Appeals). The following orders also issued by this Bench held that Welding Electrodes, Oxygen and Nitrogen, etc. used in the maintenan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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