Customs, Excise and Gold Tribunal - Bangalore
Mangalore Refinery And Petrochemicals ... vs The Commissioner Of Central Excise on 27 July, 2007
Equivalent citations: 2007(123)ECC263, 2007(149)ECR263(TRI.-BANGALORE), 2008(221)ELT567(TRI-BANG)
ORDER S.L. Peeran, Member (J)
1. This appeal arises from the OIO No. 10/2004 dated 30.09.2004 passed by the Commissioner of Central Excise, Mangalore.
2. There were two issues before the Commissioner of Central Excise. One issue pertained to availment of Modvat Credit in respect of CVD paid on various inputs imported during April to December, 1998. As there were several contra judgments on the issue with regard to the eligible document to avail Modvat credit, especially the Bill of Entry, therefore, the matter was referred to the Larger bench. The Hon'ble President constituted a Larger Bench in this matter and this issue was heard by the present Members of this Bench and Shri P.G. Chacko, Member (Judicial) and a Misc. Order No. 623/2006 dated 07.11.2006 had been passed. The finding rendered with regard to the first issue had been brought in the noted Misc. order. The finding rendered is that the Bill of Entry has to be treated as a relevant document. However, the claim made by the assessee on the basis of the Bill of Entries in the matter had been held to be barred by time.
2.1. The other question required to be decided in terms of the impugned order is as to whether the assessee is eligible for Cenvat/Modvat credit in respect of the Argon Gas used for the purpose of Welding of inputs/raw materials i.e. in the present case, Pipes, which are used as Capital Goods in the Refineries. The learned Counsel submits that this issue has already been decided by this bench in the case of Rashtriya Ispat Nigam Ltd. v. CCE, Visakhapatnam-I 2006 (205) ELT 811 (Tri.-Bang.). This Bench has considered the issue in the light of the Apex Court judgments rendered in (i) CCE v. Ballarpur Industries Ltd. ; (ii) CCE v. Eastend Paper Industries Ltd. and the High Court judgment of Patna and Punjab & Haryana rendered in CCE v. Tata Engineering and Locomotive Co. Ltd. and CCE v. National Fertilizer Ltd. respectively. The earlier order rendered by this bench in assessees' favour in the case of India Sugar and Refineries v. CCE 2006 (205) ELT 717 (Tribunal) has already been considered. The learned Counsel submits that the Tribunal's ruling rendered in the case of Jaypee Rewa Plant v. CCE has not been followed for the reason that the issue was considered by the Supreme Court and High Courts in assessees' favour and the same had been considered and followed in India Sugar & Refiners v. CCE.
3. Heard the learned SDR. She submits that the Tribunal ruling rendered in the case of Jaypee Rewa Plant should be considered in Revenue's favour. It is her submission that the Larger bench of the Tribunal in the case of Jaypee Rewa Plant has clearly held that the Welding Electrodes are not entitled for the benefit of Modvat credit. In counter, the learned Counsel submits that the issue was re-examined by this bench in RINL's case and this bench took into consideration the judgments of Supreme Court and the High Courts to nullify the order of the Larger bench, as it has been rendered sub-silentio.
4. We have carefully considered the submissions. We agree with the learned Counsel that the judgment rendered by the Larger Bench in the case of Jaypee Rewa Plant in Revenue's favour was rendered sub silentio to the judgments on the point which were already rendered by the Apex Court and the High Courts. Therefore, the issue had been considered by this Bench in India Sugar & Refineries case, which the Larger bench has not taken into consideration in Jaypee Rewa Plants case. Therefore, the Tribunal, after reconsideration of the matter in RINL, noted that the judgment of the Larger bench in the case of Jaypee Rewa Plant was rendered sub-silentio. As the issue is covered by the Supreme Court and High Court judgments in assessees' favour, we have to hold that the assessee is eligible for Cenvat credit in respect of Argon gas necessary for welding operation in the maintenance of the Plant. The Mumbai Bench, in the case of Alfa Laval (India) Ltd. v. CCE, Pune , has considered this very point and held that Argon gas, necessary for welding operation in manufacture of machinery, has to be granted Modvat credit. In view of the stated position, the Final Order emerging in this order is:
(a) the Bill of Entry has to be treated as an eligible document for the purpose of Cenvat Credit. However, in this case, the credit on the said Bill of Entry was taken after six months of the date of issue of the Bill of Entry and hence, the assessee is ineligible to avail the credit.
(b) The assessee is eligible to avail the Cenvat credit in respect of Argon gas used for welding purpose of Pipes, which are Capital Goods.
The appeal is disposed of in the above terms.
(Pronounced and dictated in open Court)