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TMI Blog2005 (11) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... The appeal is allowed with consequential relief, if any. - Dr. S.L. Peeran, Member (J) and Shri T.K. Jayaraman, Member (T) [Order per : S.L. Peeran, Member (J)]. - This appeal arises from OIA No. 1046/99-C.E., dated 28-9-1999. The appellant is a manufacturer of Sugar. The hot sugar used passes through Juice Pipes and tanks. Due to severe heat, the pipes and tubes get punctured and therefore, they are required to be welded. The appellants use Oxygen gas, Acytelene Gas and Welding Electrodes for such welding at regular intervals. It is, their contention that the activity of keeping the pipes intact whenever there is puncture due to heat, is to be considered as "in or in relation to manufacture of final goods". The activity is not for repair and maintenance work and, therefore, the finding recorded is not proper. Both the authorities have denied the benefit on the ground that the activity of welding the punctured tubes and pipes at regular intervals is an activity of repair and maintenance and they are not eligible for the benefit of the Modvat credit in respect of such items. 2. It is the contention of the learned Counsel that although the Larger Bench of the Tribunal, in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision would not be binding in case if it has over looked to look into the judgment of the High Court or Apex Court. Therefore, he submits that it would not be judicial indiscipline to disregard the Larger Bench judgment of Jaypee Rewa Plant and take a view that the activity of repair and maintenance is necessary and integral part of production of final goods in terms of the Punjab Haryana High Court judgment rendered in the case of CCE v. National Fertilizer Ltd. which in turn relied on the three Apex Court judgments. He refers to another Larger Bench judgment rendered by the previous President Justice K. Sreedharan, along with other two Members, in the case of CCE, Meerut-I v. Modi Rubber Ltd. - 2000 (119) E.L.T. 197 (Tribunal-LB) wherein the use of lubricating oils and greases used for the purpose of lubricating the machine and machinery, which were used for the manufacture of final product has been held to be eligible for the Modvat credit. He submits that this Larger Bench has referred to the Apex Court judgment rendered in the case of Collector v. Ballarpur Industries Ltd. - 1989 (43) E.L.T. 804 (S.C.) and that of Collector v. Eastend Paper Industries Ltd. (supra). He submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at lubrication of the machinery is an activity which is concerned with or pertaining to the manufacture of the finished products. It has further been held that it is rather integrally connected with the manufacture and that the use of lubricants in the machinery is certainly in or in relation to the manufacture of the finished products. This reasoning should have been adopted in Jaypee Rewa Plant but the very Member who wrote the order in CCE v. Modi Rubber Ltd., has given a different interpretation in Jaypee Rewa Plant. In order to resolve the controversy, the matter is required to be again referred to still Larger Bench but, however, in terms of Larger Bench judgment rendered in the case of Mira Silk Mills v. CCE comprising of same Members as in the case of Jaypee Rewa Plant, wherein it has taken a view that when the Tribunal takes a decision without referring to case-law, then it would be an error apparent on the face of the record in terms of Apex Court judgment rendered in the case of Dokka Samuel v. Dr. Jacob Lazarus Chelly - 1997 (4) SCC 478. It has also held that the High Court decision will prevail over the Tribunal decision even if it is a Larger Bench decision. It has al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o expressed by the Apex Court in M/s. Steel Authority of India Ltd. Etc. v. Collector of Central Excise, 1996 (88) E.L.T. 314 (S.C.) =AIR 1996 Supreme Court 2544. "8. As a sequel to the above discussion, it is held that the furnace oil, which was used in the manufacture of steam, which in turn was further used in the generation of electricity during the shut-down period, was entitled to the concessional rate of duty. 9. In the end result, the reference petition filed by the revenue is dismissed in limine." 5. As can be seen from the above finding that for the effective running of any Plant, maintenance and overhauling of the machinery is necessary and it is an integral part in the process of manufacture. The Punjab Haryana High Court has referred to earlier two Supreme Court judgments (i) CCE v. Eastend Paper Industries Ltd. and (ii) Indian Farmers Fertilizers Cooperative Ltd. v. CCE. The ratio of the Punjab Haryana High Court, and the other two Supreme Court judgments noted therein, have not been referred to by the Larger Bench in the case of Jaypee Rewa Plant. Thus the findings rendered in the case of Jaypee Rewa Plant, denying the benefit of Modvat in respect of welding electrod ..... X X X X Extracts X X X X X X X X Extracts X X X X
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