Custom, Excise & Service Tax Tribunal
Neoli Sugar Factory vs C.C.E. & S.T. -Lucknow on 30 September, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
REGIONAL BENCH: ALLAHABAD
SINGLE MEMBER BENCH
E/50483, 50484, 50485/2015-EX(SM)-EX(SM)
and E/70091/2016-EX(SM)
Dated of Hearing/decision: 30/9/2016
[Arising out of Order-in-Appeal No. 149-CE/LKO/2014 dated 08/10/2014, Order-in-Appeal No. 159-160-CE/LKO/2014 dated 09/10/2014 passed by Commissioner of Central Excise (Appeals), Lucknow and Order-in-Appeal No. 404/CE/APPL-AGRA/LKO/2015 dated 16/10/2015 Passed by Commissioner of Central Excise (Appeals), Lucknow]
For approval and signature:
Honble Shri Anil G. Shakkarwar, Member (Technical)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
3.
Whether their Lordships wish to see the fair copy of the order?
Seen
4.
Whether order is to be circulated to the Department Authorities?
Yes
Neoli Sugar Factory Appellant
Vs.
C.C.E. & S.T. -Lucknow Respondent
And C.C.E, AGRA Appearance:
Present for the Appellant: Shri Raj Kumar (CA) Present for the Respondent: Shri D.K.Deb (Assistant Commissioner), A.R. Coram: Honble Shri Anil G. Shakkarwar, Member (Technical) Final Order No.70970-70973/2016 Per: Anil G. Shakkarwar These four appeals are taken together for decision because the appellant is same and issue involved in four appeals is same but for the different periods.
2. The appellant availed Cenvat Credit of duty of Excise paid on Welding Electrodes used as inputs for repair and maintenance of capital goods in the factory of manufacture of sugar.
3. The impugned Order-in-Appeal in respect of Appeal No. E/50483/2015 is order-in-appeal No. 149/CE/LKO/2014 dated 08/10/2014. Appeal No. E/50484/2015 is against Order-in-Appeal No. 159-160/CE/LKO/2014 dated 09/10/2014. Appeal No. E/50485/2015 is against Order-in-Appeal No. 159-160/CE/LKO/2014 dated 09/10/2014 and Appeal No. E/70091/2016 is against Order-in-Appeal No. 404/CE/APPL-AGRA/LKO/2015 dated 16/10/2015. For the sake of convenience fact in respect of Appeal No. E/50483/2015 are given below and facts are same for other appeals but for different periods. In the Appeal E/50483/2015, a show cause notice dated 26/03/2013 was issued proposing to deny Cenvat credit of Rs.88,600/- availed during the period from June 2011 to November 2011 on welding electrode claiming the same to be inputs used for repair and maintenance of capital goods. The issue was decided through Order-in-Original No.63/Adj./2013 dated 21/05/2013. The original authority has denied the said Cenvat credit. The appellant preferred appeal before the Commissioner (Appeals). Ld. Commissioner (Appeals) decided the said appeal through Order-in-Appeal No.149/CE/LKO/2014 dated 8.8.2014 wherein ld. Commissioner (Appeals) upheld the original order and rejected the appeal. The Cenvat credit involved in Appeal No. 50484 is Rs.11615/-. The Cenvat credit involved in Appeal No. 50485 is Rs.34108/- and Cenvat credit involved in Appeal No. 70091 is Rs.5593/-. In case of Appeal No. 50483 Original Authority is imposed equal penalty.
4. Heard the ld. Counsel for appellant. The appellant has submitted that Single Member bench of this Tribunal has allowed credit of duty paid on welding electrodes used for repair and maintenance for capital goods treating them as inputs. He has submitted that this Tribunal in the case of Ganga Kishan Sahkari Chinni Mills Ltd. Vs. Commissioner of Central Excise, Meerut-I reported in 2016 (335) E.L.T. 99 (Tri-All.) through Final Order No. A/70005/2016-SM dated 26/10/2015 has held that in view of the facts that no final product can be manufactured without repair and maintenance and up keep of capital goods, inputs required for up keep and maintenance are eligible for credit of Cenvat as inputs and in view of the same allowed Cenvat credit of duty paid on welding electrode used for repair and maintenance of capital goods. He has further submitted that Single Member Bench of this Tribunal in the case of Oudh Sugar Mills Ltd. Vs. Commissioner of Central Excise and Customs, Lucknow reported at 2016-TIOL-955-CESTAT-Allahabad held that question before the Honble Allahabad High Court in the case of Upper Ganges Sugar & Industries Ltd. Vs. Commissioner of Central Excise reported at 2015-TIOL-2984-HC-ALL-CX was whether the welding electrodes can be treated as capital goods under Rule 57Q of the erstwhile Central Excise Rules, 1944 and that was not the issue in said appeal and accordingly held that Cenvat credit on welding electrodes used for repair and maintenance was admissible.
5. Ld. DR has supported the findings in impugned Orders-in-Appeal.
6. I have carefully gone through the facts of the case and decisions of this Tribunal in the two cases cited above. The Final Orders in the quoted case decided by this Tribunal are squarely applicable in these four appeals. It was held by this Tribunal that the Cenvat credit of duty paid on welding electrodes used in repair and maintenance of capital goods is treated as inputs and is admissible. Following the decisions of this Tribunal, I hold that in the present four cases Cenvat credit of duty paid on welding electrodes used for repair and maintenance of capital goods is admissible to the appellant. In view of the same subject four appeals are allowed. The impugned Orders-in-Original and Orders-in-Appeal are set aside.
(Dictated and pronounced in the open Court) (ANIL G. SHAKKARWAR) MEMBER (TECHNICAL) (K. Gupta) E/50483, 50484, 50485/2015-EX(SM)-EX(SM) and E/70091/2016-EX(SM) 1