Karnataka High Court
Commissioner Of Central Excise vs M/S. Alfred Herbert (I) Ltd on 9 April, 2010
Bench: K.L.Manjunath, B.V.Nagarathna
A,"_1;'T_Q5_§
IN THE HIGH COURT 011* KARNATAKA AT BANGALORE
DATED THIS THE 09TH DAY OF APRIL, 2010
PRESENT
THE HONBLE MRJUSTICE Q" 'V
AND
THE HONBLE MRS. JUS"1"I.CE B;'xrV:NA.GAR2YJ.j§NA I
c.E.A; No.55-{é'_g9_g 1
BETWEEN:
COMMISSIONEROF.' EXCISE"
BANGALORE~Is_'CCiMMISE5ICéM¥'3RATE ' "
P.B.NO.54OQ,"QUEEN"S RQAI) V '
BANGALORE 5£~;_0,o01" » _ «_
. .. APPELLANT
(By Sri: ;IEE'JAN"JV.NEERAi;GI;'"ADV.)
38/I'/S: ALi+'RI::)'«HERBERT (I) LTD
eP.'B.eN"o.4e_0i:~ "
"'*.r;~Im3F1'L'ILr>__
MA.'riADEVAP--{}R
V P' _ BANGALQRQ"
RESPONDENT
{3y";3;~i: K PARAMES-HWARAN, ADV.) CEA filed u/S.35G of the Central Excise Act, 1944 P. arising out of Order dated 25/ 7 / 2008 passed in Fina} Order No.II42/2008, praying that this Horfble Court may be pleased to:
45/ as 2 .__ i. to decide the substantial question of law stated therein, ii. set aside the CESTAT, South Zone Bench, Bangalore in final order No. 1 142 / 2008 dated 25/7/2008 arised in Appeal No. 13/ 318/ 2007 in the ends of justice and equity. ' This CEA coming on for HEARING this day;"1v1¢:;g.z;jr£&i:h'~.p J., delivered the following The revenue has come up in this appeal'.ehallenging the legality and correctnessVlof___theorders the CESTAT dated 25.7.2008 raisingthe .s_ubstantia1 question of law: 2
1) - Whether the...Ho_n?bie p¢:Es>mq=1liis 'correct in of input credit in 0' ..respee.t':_e<.of which were used for llflrgepair ._a'n,_d lrriaintenarice of plant and machinery when the said issue was alreadj/'decided by the Larger Bench of the New Delhi and the Hon'ble Court as inadmissible.
pg 2. 0 have heard the learned counsel for the parties. V 3. '1' he dispute is in regard to exemption to be granted in 0 'respected of the Cenvat Credit be allowed on the inputs used the repair and maintenance of the plant and machinery. The learned counsel for the appellant relying upon the er' A4444 3 _ judgment in SAIL V/s. Commissioner of Centrai Excise, Ranchi which has been affirmed by the Supreme Court contends that the tribunal was not justified in a1lo\yiiig'the appeal of the assessee.
4. Per contra, learned counsel for the"-.,resipoi'iden~t.: K it contends that the judgment in SAHLM V/s, of. Central Excise, Ranchi (2008(222l'.EiL,_4l'.233v_~_(Ti*i.KoVlicata)Vg was delivered considering the prowusion of law _ir;hi'e>h was in existence prior to the ainendrnent~lvandithat thecase of sail was in respect of the assessinen.t7'yea_r_'g in the year 2000 an brought into. In terms of the amendrnent* to the of Central Excise Act, the assessee is 4'e11titled.'*to"'.claim Cenvat even in respect of the ' 0' '=.inpu.ts i,:ssed-- for repair and maintenance of the machinery oiiyestion has to be considered by the High Court of_Jud_.icature for Rajasthan at Jodhpur in Union of l°~.,.,_'<._India V/s';Hindustan Zinc Ltd. (2007 (214) E.L.T.520(Raj) in ":0 lsaid case it was confirmed by the Supreme Court while dismissing theappeal flied by the Union of India. Being 04 aggrieved this appeal is preferred. {W}
5. Having heard the counsel for the parties. we are of the view that the tribunal has been justified in a11o_wi.ng.<i_ith_e appeal of the assessee considering that the . assessee has arisen subsequent to the amendment hrougntt into in the year 2000 and re1ying.__up_gon.j3the._1provisioi1s "*~:-{A amended provision, the tribunai-was justifiegd the 1 relief. The judgment relied upon: is not at all aiapiicable to the facts ~ since the said judgment is delivered If the subject matter of prim, to the amendmentithe contention of the revenue." dismissed answering the questions of revenue in favour of the assessee.
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REESE Sd/~ TGDGE