Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise vs Delphi Tvs Diesel Systems Ltd on 8 February, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Application No. E/ROM/8/12 (by assessee) &
Appeal No. E/627/2010 (by dept.)
[Arising out of Order-in-Appeal No. 10/2010 (M-IV) (D) dt. 30.7.2010 passed by the Commissioner of Central Excise (Appeals), Chennai]
For approval and signature:
Honble Shri MATHEW JOHN, Technical Member
1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? :
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? :
3. Whether the Member wishes to see the fair copy of
the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
Commissioner of Central Excise,
Chennai-IV
Appellant
Versus
Delphi TVS Diesel Systems Ltd.
Respondent
Appearance:
Shri M. Kannan, Advocate For the Appellant
Shri Parmod Kumar, JC (AR) For the Respondent
CORAM :
Honble Shri Mathew John, Technical Member
Date of hearing : 8.2.2013
Date of decision : 8.2.2013
FINAL ORDER No.
Applicant has filed this application for rectification of mistake perceived by them in Final Order No.1212/11 dt. 2.11.2011 issued by the Tribunal by which an appeal filed by Revenue was allowed. The issue involved in the appeal was whether CENVAT credit could be taken on electrodes used by the applicant in their factory. In the impugned final order, the Tribunal has given a finding that the welding electrodes in question were used in repair and maintenance of the machinery and hence CENVAT credit of duty paid on such items could not be allowed.
2. The submission of the applicant is that in the first place, the goods were not welding electrodes but only electrodes and these electrodes were used in manufacturing machinery as has been submitted during the adjudication stage and recorded in one of the many unnumbered paragraphs of the adjudication order. The same is reproduced below :-
.
To decide the eligibility of the goods as capital goods, I consider the question of classification of the said electrodes. I find that the assesses has submitted a detailed description of the goods and its usage in the manufacture of Nozzle by Electro Chemical Machine (ECM) and Electro Discharge Machine (EDM). According to the assessee, in the process, the electrode work piece is first machined by electrical discharges occurring across a dielectric fluid and the same subsequently subjected to a finishing pass in a course of which it is machined by electrochemical machining (ECM) through a conductive electrolyte replacing the dielectric fluid.
3. The manner in which the electrodes are used is also recorded in another paragraph which also is reproduced below :-
Chapter sub-heading 8456 reads as Machine-tools for working any material by removal of material, by laser or other light or photon beam, ultra-sonic, Electrodischarge, Electro-chemical, Electron beam, Ionic-beam or plasma arc processes. Chapter Sub-heading 8466 reads as Parts and accessories suitable for use solely or principally with the machines of Headings 8456 to 8465, including work or tool holders, self-opening dieheads, dividing heads and other special attachments for machine-tools; Tool holders for any type of tool, for working in the hand. As seen from the write up given for usage of the said electrode and from the description of chapter sub-heading nos. 8456 & 8466, I find that the impugned electrodes can well be fitted into chapter sub-heading 8466 as parts suitable for use solely with the machines of heading no.8456. Thus, I conclude that the classification of the electrodes is to be rightly done under chapter sub-heading 8466 of Central Excise Tariff Act, 1985, as per rule 1 of interpretative rule mentioned above. Even without going into the merits of the classification of the electrode, it is a fact that they are used in conjunction with the electro chemical machines rightly falling under CETH 8456.
4. From these paragraphs, it is very clear that the goods involved were not welding electrodes which were used in maintenance and repair of machinery. These facts were not controverted in proceedings at higher levels. Tribunal, based on no records or findings, presumed erroneous facts which led to erroneous decision and as these facts are apparent on record, it should be rectified.
5. The Ld. AR for Revenue submits that application is beyond the scope of rectification of mistake. He relies on the decisions of CCE Surat Vs Shree Ganesh Khand Udyog Sahakari Mandli Ltd. -
2010 (253) ELT 313 (Tri.-Ahmd.) and CCE Mumbai Vs RDC Concrete (India) P. Ltd. - 2011 (270) ELT 625 (SC).
6. I have considered the submissions from both sides. The facts involved in the case law cited by Revenue are not same as the one involved in the facts of present case before me. In this case, there are wrong facts were taken on record, without indicating the source, in the Tribunals final order. So it is only proper that such mistake in finding of fact and consequent decision are rectified.
Therefore, I recall the impugned order.
7. Further, I have heard both sides on the merits of the issue. I find that these electrodes are not usual welding electrodes about which there is dispute whether CENVAT credit could be allowed or not. These electrodes form part of the machinery itself and therefore I am in agreement with the findings of both the lower authorities. So I uphold the order of the lower authorities and allow CENVAT credit on these items.
8. ROM application is allowed and the appeal filed by Revenue is rejected.
(Dictated and pronounced in open court) (MATHEW JOHN) TECHNICAL MEMBER gs 2 1