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TMI Blog2015 (11) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... but on perusal of the facts, it is observed that both the judgments are in respect of welding electrodes used for repair and maintenance of plant and machinery whereas in the present case spot welding electrodes are used in manufacturing of final product therefore in my considered view the lower authority should not have brushed aside the fact that there is difference in use of welding electrodes in the M/s. Jaypee Rewa Plant case and in the present case. - since spot welding electrodes used in the manufacture of final product i.e. motor vehicle, it is qualified as input and therefore credit is otherwise admissible as input. Though the appellant has availed Cenvat Credit under capital goods that alone cannot disentitled appellant from avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 2001 was not admissible. The show cause was adjudicated by the Assistant Commissioner, Central Excise and Customs, Aurangabad-II Division vide OIO No. 50/DMD/2005 dated 30.11.2005 wherein the show cause notice dated 5.1.2004 demanding central excise duty of ₹ 42,934/- in respect of Spot Welding Electrodes was withdrawn. Being aggrieved by the said OIO dated 30.11.2005; the department filed an appeal with the Commissioner(Appeals), Aurangabad who vide OIA No. AKD(21)29/07 dated 13.2.2007 decided the matter thereby upholding the OIO No. 50/DMD/2005 dated 30.11.2005 and the departmental appeal was dismissed. Being aggrieved with the OIA dated 13.2.2007, the department filed appeal with CESTAT and Honble CESTAT vide order No. A/1634/C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 173Q of Central Excise Rules, 1944 and Rule13 of Cenvat Credit Rules, 2001 read with Section 11AC of Central Excise Act, 1944. Recovery of interest at appropriate rate under Rule 13 of Cenvat Credit Rules, 2001 read with section 11AA of Central Excise Act 1944 was also ordered vide said OIO dated 26.3.2008. Being aggrieved by the said OIO dated 26.3.2008, the appellants have filed the present appeal on the grounds that the Assistant Commissioner has not properly appreciated the ratio of larger bench decisions of Tribunal in the case of M/s. Jaypee Rewa Plant Vs. Commissioner of Central Excise, Raipur[2003(159)ELT 553(Tri. LB)] and in the case of M/s. Triveni Engineering and Industries Limited Vs. Commissioner of Central Excise, Merrut[20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pot welding electrodes are used by the appellant for welding of rikshaw body and hence used in processing its inputs for manufacturing dutiable final products. The welding electrodes are not used by the appellant for maintenance or repairs in their factory. 4. Shri. H.M. Dixit, Ld. Asstt. Commissioner(A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He further submits that as per the Tribunals earlier order the lower authority was supposed to decide matter only reconsidering matter in the light of larger bench judgment in the case of M/s. Triveni Engineering and Industries Limited and M/s. Jaypee Rewa Plant therefore lower authority had no option except to follow those judgments and accordingly they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case and thereafter if it is found that the fact of the case is different from the judgments of M/s. Triveni Engineering and Industries Limited and M/s. Jaypee Rewa Plant the adjudicating authority can take the independent view without following judgments of M/s. Triveni Engineering and Industries Limited and M/s. Jaypee Rewa Plant. I found that in the present case since spot welding electrodes used in the manufacture of final product i.e. motor vehicle, it is qualified as input and therefore credit is otherwise admissible as input. Though the appellant has availed Cenvat Credit under capital goods that alone cannot disentitled appellant from availing the credit under input. As regard admissibility of modvat credit in respect of sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of M/s. Gujarat Alkalies case reported in 1989 (41) E.L.T. 424 inasmuch as electrodes mentioned in M/s. Gujarat Alkalies is in the sense of cathodes and anodes and which are not involved herein. We observe that apart from this analogy drawn from Gujarat Alkalies, there are other arguments given by the Division Bench in Telco for holding that spot welding electrodes are covered by the Explanation to Rule 57A defining the expression input and these are not hit by the exclusion clause. We have gone through the judgment of West Regional Bench in M/s. Telco as also the judgment of Division Bench in the case of Maruti Udyog Ltd. relied upon by the learned advocate for the respondents. We do not agree with the contention of the ld. JDR that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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