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TMI Blog2023 (2) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Apex Court. The facts of the present case are squarely covered by the aforesaid decision - Appeal allowed. - Excise Appeal No.76955 of 2018 - FINAL ORDER NO. 75048/2023 - Dated:- 9-2-2023 - SHRI P.K.CHOUDHARY, MEMBER (JUDICIAL) Ms. Bhawana Singh, Chartered Accountant for the Appellant (s) Shri J.Chattopadhyay, Authorized Representative for the Respondent (s) ORDER Heard both sides and perused the appeal records. 2. I find that the issue is no more res integra and is decided in favour of the Appellant as held by the Tribunal in the case of CCE Meerut vs. Bajaj Hindustan Ltd. [2017 (49) STR 601 (Tri.-Del)], where the issue pertaining to eligibility of welding electrode for repair and maintenance activi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y view, I am of the view that when three High Courts have taken a view that welding electrodes used for repair and maintenance of the plant and machinery are eligible for Cenvat credit, it is this view would prevail. Moreover, the question of eligibility of an item used for a particular activity for Cenvat credit is linked with whether the activity in which the items are used has nexus with the manufacture or not and it is not material as to whether that activity is part of manufacture or not. In view of this, the impugned order upholding the Cenvat credit demand is not sustainable and there is no merit in the Revenue s appeal for imposition of penalty. Therefore, the impugned order upholding the Cenvat credit demand is set aside. The appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies the items under the Rule 2(k)(F) of the definition is unfounded for the reasoning that clarificatory Circular No. 943/4/2011-CX dated 29.04.2011 has made it explicitly clear that only credit of goods used in the factory but having absolutely no relationship with the manufacture of final product like furniture and stationary used in the office of the factory are to be disallowed and therefore, the expression no relationship whatsoever with the manufacture of a final product must be interpreted and applied strictly and not loosely would mean that indirect use of any goods would be considered as inputs for the purpose of availment of CENVAT Credit. She further submitted that the sole ground of rejection of their appeal by the Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pression of facts etc. with intent to evade duty, for which learned Commissioner (Appeals) himself had set aside the penalties including penalty imposed under Rule 15(1) of the CENVAT Credit Rules, 2004 and on this score alone, the order confirming recovery of CENVAT Credit on extended period would have been set aside. 4. In response to such submissions learned Authorised Representative for the Respondent-Department Mr. P.K. Acharya, while justifying the reasoning and rationality of the order passed by the Commissioner (Appeals), argued with reference to the judgment of the Hon'ble Andhra Pradesh High Court reported in 2011-TIOL- 1054-HC-AP-CX in the case of Sree Rayalaseema Hi-strength Hypo Ltd. Vs. Commissioner of Customs and Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduct. Relied upon case laws namely Sree Rayalaseema Hi-strength Hypo Ltd. decision, cited supra pronounced on November 16, 2011, that was relied upon in the Order-in-Appeal, was pronounced with reference to preamended CENVAT Credit Rules which cannot be applied as a judicial precedent to the post amended definition which has broadened the meaning to have high amplitude. I am, therefore, of the considered view that the credits availed by the Appellant on Welding Electrodes and D.A. Gas are eligible credits and Appellant had rightly availed the same. Hence the order. ORDER 6. The appeal is allowed and the order passed by the Commissioner of Customs, Central Excise GST (Appeals), Nagpur vide Order-in- Appeal No. NGP/EXCUS/000/APP ..... X X X X Extracts X X X X X X X X Extracts X X X X
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