Custom, Excise & Service Tax Tribunal
M/S. Gobind Sugar Mills Ltd vs Cce, Lucknow on 21 April, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST BLOCK NO. 2, R.K. PURAM, NEW DELHI COURT III E/STAY/30/2009-SM IN & EXCISE APPEAL NO. 20 OF 2009-SM [Arising out of Order-in-Appeal No. 100-CE/LKO/2008 dated 30.9..2008 passed by the Commissioner (Appeals), Central Excise, Lucknow] For approval and signature: Honble Mr. P.K. Das, Member (Judicial) 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 would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair copy of the order? 4. Whether order is to be circulated to the Departmental authorities? M/s. Gobind Sugar Mills Ltd., Appellant Vs. CCE, Lucknow Respondent
Appearance:
Shri Rajesh Chhibber, Advocate for the appellant;
Shri S.K. Bhaskar, D.R. for the Revenue;
Coram:
Honble Mr. P.K. Das, Member (Judicial), Date of hearing/decision: 21st April, 2009 FINAL ORDER NO._________________ dated __________ Per P.K. Das:
After hearing both the sides and on perusal of the records, I find that the issue involved is in narrow compass and, therefore, after granting stay, appeal itself is being taken up for hearing.
2. In this case credit was denied on Welding Electrodes. It is revealed from the impugned order that during the period April, 2006 to February, 2007 the appellants availed credit to the tune of Rs. 4,13,017 on Welding Electrodes used in maintenance and repair of plant and machinery installed in the factory. The original authority denied the credit and imposed penalty of equal amount. The Commissioner (Appeals) upheld the adjudication order.
3. Learned Advocate submits that the Honble Rajasthan High Court in the case of Hindustan Zinc Ltd. vs. UOI, reported in 2008 (87) RLT (Raj.) held that Welding Electrodes used for maintenance and repair of plant and machinery is eligible for credit. On the other hand, learned D.R. submits that the Tribunal in the case of SAIL vs. CCE, Ranchi, reported in 2008 (84) RLT 37 denied the credit on Welding Electrodes which was upheld by the Honble Supreme Court, as reported in 2008 (229) ELT 127 (SC). In reply, learned Advocate submits that the Tribunal in the case of General Manager, Oswal Overseas Ltd. vs. CCE, Meerut, reported in 2009 (91) RLT 577 (CESTAT-Del.) after considering the decision of the Tribunal in the case of SAIL allowed the credit on Welding Electrodes.
4. After hearing both sides, I find that the Honble Rajasthan High Court in the case of Hindustan Zinc Ltd. (supra) allowed the credit on Welding Electrodes. It is observed that the Tribunal in the case of General Manager Oswal Overseas Ltd. (supra), after considering the decision of the Tribunal in the case of SAIL allowed the credit on Welding Electrodes. The relevant portion of the said decision is reproduced below:-
I have carefully considered the submissions from both the sides. The first point of dispute is regarding eligibility of welding electrodes used for maintenance and repair of sugar mills for Cenvat credit. On this issue, while on one hand there is judgment of the Tribunal in the case of SAIL vs CCE, Ranchi (supra), SLP against which has been dismissed by the Supreme Court, on the other hand is the judgment of the Honble High Court of Rajasthan in the case of Hindustan Zinc Ltd. vs. UOI, which is a detailed judgment and in which the Honble High Court has held the welding electrodes used for repairs & maintenance of the machinery and plant would be eligible for Cenvat credit both as input as well as capital goods. I agree with the Appellant that dismissal of SLP by Supreme Court against Tribunals judgment in the case of SAIL vs CCE, Ranchi does not lay down any law, as it is only summary dismissal and in this regard, I am supported by the judgment of this Tribunal in the case of Asst. Engg. (Civil) P.C.C. Poles Factory & Others vs. CCE, Raipur reported in 2008 (89) RLT 216 wherein the Larger Bench of the Tribunal has clearly held that it is well settled that summary dismissal of SLP/Civil appeal by Supreme Court does not amount to affirmation of the judgment or the order of the Court/Tribunal appealed against on merit and merely means the Supreme Court has declined to interfere in the matter. I also find that this view is supported by the Honble Supreme Court in the case of Kunhayammed vs. State of Kerala (supra). Therefore, I hold that Cenvat credit is available in respect of welding electrodes used for maintenance and repairs of the plant and machinery.
5. In view of the above discussion, I find that Welding Electrodes used for repair & maintenance of plant and machinery is eligible for credit. Accordingly, impugned order is set aside. Appeal is allowed. Stay petition is also disposed of.
(Dictated & pronounced in the Open Court.) (P.K. DAS) MEMBER (JUDICIAL) RK