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TMI Blog2009 (10) TMI 742X X X X Extracts X X X X X X X X Extracts X X X X ..... unt to be recovered. The appellants are engaged in the manufacture of V.P. sugar and molasses falling under sub-heading No. 1701.31/1701.39 and 1701.10 of the Central Excise Tariff Act, 1985. 2. The appellants had taken credit of the duty paid to the tune of Rs. 34,940.45 on the items like welding electrodes for the period from November, 2002 to June, 2003. The welding electrodes are classifiable under sub-heading 8311.00 of the said Tariff Act were claimed to be the capital goods within the meaning of the said expression under the Cenvat Credit Rules, 2002 to avail the Cenvat Credit in respect of the duty paid thereon. A show cause notice dated 4th September, 2003 came to be issued to the appellants in that regard and after hearing the parties, the Dy. Commissioner by the said order dated 31st December 2003 rejected the claim regarding Cenvat Credit and passed said order directing recovery of the amount. The appeal against the same did not yield successful result to the appellants, except setting aside the penalty and hence the present appeal. 3. While assailing the impugned order, the ld. Advocate for the appellants submitted that the authority below has failed to consider th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntended that the decision of the Tribunal in the case of Vikram Cement v. CCE, Indore [2009 (242) E.L.T. 545 (Tri.)] delivered on 23rd and 24th July, 2009 under Final Order No. 603/09 would not apply to the matter in hand as the point which is sought to be canvassed in this matter did not arise for consideration in the case of Vikaram Cement matter. 4. The ld. DR on the other hand, submitted that the contention regarding the welding electrodes being accessories of the goods specified under Rule 2(b)(i) was never raised either before the adjudicating authority or before the Commissioner (Appeals) and, therefore, there was no occasion for the authorities to deal with the same and the appellants are not entitled to raise the same for the first time at this stage. He further submitted that the welding electrodes get consumed in the welding processes and being so, they cannot be said to be the accessories to the capital goods specified under clause (b)(i) of Rule 2. They do not help the welding machine either in its functioning or enhancing its functioning activity for the process of manufacture of the final products. He further submitted that there is neither any evidence produced by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her words, the appellants did try to bring to the notice of the adjudicating authority that the appellants would be entitled to claim the welding electrodes as the capital goods within the meaning of the said expression under the said Rules. Though the Adjudicating authority as well as the lower appellate authority have rejected the claim of the Cenvat credit in relation to the duty paid on the said items on the ground that the same are not the capital goods in terms of Rule 2(b)(i) of the said Rules, neither in the order passed by the adjudicating authority nor in the order passed by the lower appellate authority, there is any discussion regarding the use and function of the said item in the factory of the appellants. The claim of the appellants being that the items in question were the capital goods within the meaning of the said expression under the said Rules, the authority dealing with such claim was primarily required to ascertain whether the appellants have been able to establish the use of those items in the factory of the appellants and in that connection ought to have analysed the materials produced in that respect by the appellants. Neither the impugned order refers to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Adjudicating Authority on the basis of the materials placed on record. 11. As regards the contention that the appellants are entitled to claim welding electrodes as the inputs, we are afraid that as rightly contended by ld. DR, the issue in that regard stands already concluded by the decision of the Tribunal in the matter of Vikram Cement. We have already held therein that the welding electrodes used for repair and maintenance of machinery cannot form the inputs within the meaning of the said expression either under Cenvat Credit Rules, 2002 or Cenvat Credit Rules, 2004. At this stage it is also to be remembered that the process of maintenance and repair defers from that of manufacture. They are independent and distinct. This is abundantly clear from the decision of the Supreme Court in the matter of Vijayawada Bottling Co. Ltd. v. CCE Guntur, reported in 1997 (94) E.L.T. 433 (S.C.). 12. It is true that referring to the decision of the Apex Court in Maruti Suzuki case, an attempt was made to convince us to take a different view on the ground that the Apex Court while deciding the matter in Maruti Suzuki case has taken a different view in relation to the decision in J.K. Cott ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the issue which was under consideration before the Apex Court, it was held thus :- 13. Electricity generation is a separate and distinct activity. It is an independent activity. It has its own economics. It does not form part of the process in which inputs are transformed into separate identifiable commodity, though it may stand connected to such processes. It may not have any concern with the manufacture of the finished product. However, it is an ancillary activity. It is an activity which is anterior to the process of manufacture of the final product. It is on account of the use of the above expression used in relation to manufacture that such an activity of electricity generation comes within the ambit of the definition because it is integrally connected with the manufacture of the final product. (emphasis supplied) 17. Further taking note of the decision in the matter of Collector of Central Excise, New Delhi v. M/s. Ballarpur Industries Ltd. reported in 1989 (43) E.L.T. 804 (S.C.) = (1989) 4 SCC 566, it was observed that the difference between the expression used in the manufacture and used as input was highlighted in the said case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be said to be the input utilized for or in relation to manufacture of the final product. This is also evident from the definition of the term input as found in rule 2(k). The definition clearly uses the word used and further clarify the same with the expression in or in relation to and further uses these expressions with reference to the term manufacture of final products . The definition disclosing the expression like used , in or in relation to , the manufacture of final products would inevitably disclose, that the same refer to only those products which are used in or integrally connected with the process of actual manufacture of the final product and only such product could be entitled to be classified as the input in or in relation to the manufacture of final products, and not otherwise. When the legislature in its wisdom has specifically defined a term, no Court or Tribunal under the guise of interpretation thereof is empowered to expand the meaning of such term. If the contention on behalf of the appellants is accepted, it would virtually amount to expand the meaning of the term input beyond the scope prescribed under the definition clause in Rule 2(k) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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