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TMI Blog2014 (9) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... /418/2012 - FINAL ORDER No. 40585/2014 - Dated:- 5-9-2014 - SHRI R. PERIASAMI, J. For the Appellant : Shri R. Suresh, Adv., For the Respondent : Shri P. Arul, Supdt., (AR) JUDGEMENT The appellant filed this appeal against the OIA No. 90/2012 dated 24.05.2012, passed by the Commissioner (Appeals). 2. The brief facts of the case are that the appellants are manufacturers of Printing Writing Paper and Newsprint falling under Chapter 48 of first schedule to the Central Excise Tariff Act, 1985. They are availing Cenvat credit on welding electrodes falling under Chapter 8311of the CETA, 1985. A Show Cause Notice dated 29.03.2011 issued to the appellant denying the cenvat credit of ₹ 3,05,598/- availed on the welding electrodes during the period May, 2010 to February, 2011. The adjudicating authority in his order dated 24.06.2011 confirmed the demand and imposed penalty of ₹ 3,000/-. The Commissioner (Appeals), by impugned order upheld the order of the lower authority and rejected the appeal. Hence, the present appeal. 3. Heard both the sides. The Ld. Advocate on behalf of the appellant submits that this Tribunals Final order No. 1300/2011 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue of admissibility of cenvat credit on welding electrodes came before this Tribunal in 2010 and again in 2011 against the appellants own case for the earlier periods. The Tribunal by Final Order No. 721/2010 dated 01.07.2010, in appeal No. E/699/09, has allowed their appeal and held that cenvat credit is admissible on welding electrodes used for repair and maintenance of plant and machineries. Subsequently, in 2011 this Tribunal vide Final Order No. 1300/2011 dated 13.12.2011, had held different views and dismissed their appeal and held that the appellants are not eligible for cenvat credit on welding electrodes used for repair and maintenance of plant and machineries. The Tribunal in 2011 order relied the Tribunal Order in the case of SAIL Vs. CCE, Ranchi (supra), on the ground that the appeal was against this order was dismissed by the Hon ble Supreme Court. The Hon ble Madras High Court had stayed the said Tribunals Order vide Hon ble Madras High Court interim Order in CMA 1236/2012 dated 11.06.2012 (MP.No. 1/2012). 6. It is pertinent to state that the issue of admissibility of cenvat credit on the welding electrodes used for repair and maintenance of plant and machinery h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l is correct in holding that the welding electrodes used for repair and maintenance are covered under the definition of capital goods in terms of Rule 57Q of the Rules. Accordingly, the appeal stands dismissed. The above judgment was relied by the Tribunal in the appellant s own case in Final Order No. 721/2010 dated 01.07.2010. 8. I find that the Tribunal s Principal Bench order dated 03.06.2013 in the case of Kisan Co-operative Sugar Factory Ltd. Vs. CCE, Meerut (supra), the issue has been discussed at length by considering the rulings of various High Courts and Tribunal, and allowed the appeal. The relevant portion of the said decision is reproduced as under:- 6. The definition of input during the period of dispute, as given in Rule 2(k) of the Cenvat Credit Rules, 2004, covered all goods except light diesel oil, HSD and motor spirit commonly known as petrol used in or in relation to manufacture of final products whether directly or indirectly and whether contained in the final product or not and includes . The expression used in or in relation to manufacture of final products whether directly or indirectly is obviously wider in scope than expression ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Rule 57A of Central Excise Rules, 1944 has a wide connotation. Therefore, in my view for determining the eligibility of a particular item for Cenvat credit, what has to be seen is as to whether without use of that item or without the activity in which that item is used, the manufacture of final product, though theoretically feasible is commercially expedient or possible or not. It is nobodys case that manufacturing activity is commercially feasible with malfunctioning machinery, and leaking pipes, tubes and tanks. Therefore repair and maintenance of plant and machinery, though by itself not a manufacturing activity, has to be treated as an activity in relation to manufacture and inputs used in repair maintenance would have to be treated as goods used in relation to manufacture. 7. Moreover I find that Hon ble Chhattisgarh High Court in case of Ambuja Cement Eastern Ltd. (supra) has held that welding electrodes used for repair and maintenance of plant and machinery eligible for Cenvat credit. In this case Hon ble Chhattisgarh High Court has also discussed the judgment of Tribunal in the case of M/s. Steel Authority of India Ltd. v. Commissioner of Central Excise, Ranchi rep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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