Custom, Excise & Service Tax Tribunal
Bellary Steel Rolling Mills vs Commissioner Of Central Excise, Mysore on 12 October, 2017
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: E/28035/2014-DB [Arising out of Order-in-Appeal No.55/2013-BM dated 04.04.2013 passed by Commissioner [A], MYSORE Bellary Steel Rolling Mills Appellant(s) Versus Commissioner of Central Excise, Mysore Respondent(s)
Appearance:
None For the Appellant Shri P Murthy, AR For the Respondent Date of Hearing: 27.09.2017 Date of Decision: CORAM:
HON'BLE SHRI M.V. RAVINDRAN, JUDICIAL MEMBER Final Order No. _________ / 2017 Per : M.V. RAVINDRAN This appeal is directed against Order-in-Appeal No.55/2013-BM dated 04.04.2013. None appeared for the appellant despite notice. Since the appeal is of 2013, the same is taken up for disposal.
2. Learned DR submits that issue is regarding eligibility to avail Cenvat credit of Central Excise duty paid on welding electrodes during the period August 2007 to Nov., 2008 or not. Adjudicating authority after considering the contention raised by the appellant in reply to the show cause notice demanding reversal drop the proceedings relying upon the judgement of Honble High Court of Karnataka in the case of Vasavadatta Cement.
3. Aggrieved by the said order, revenue preferred an appeal before the first appellate authority. Learned first appellate authority reversed the judgement of the Honble High Court of Karnataka relying upon the judgement of Honble High Court of Andhra Pradesh in the case of Rayalseema Hi-Strength Vs. Commissioner of Customs & Central Excise, Tirupathi [2012 (278) ELT 167 (A.P.)]. Hence this appeal.
4. It is the submission of learned DR that the Honble High Court of Allahabad in the case of Kesar Enterprises Ltd. Vs. CCE in the Honble High Court of Allahabad [2016 (344) E.L.T. 809 (All.)]; has held welding electrodes used for repair and maintenance of plant and machinery is not used in or in relation of the final product. Hence, credit no admissible. He produces a copy of the said order.
5. On careful consideration of the submissions made, I find that there is no infirmity as to the fact that welding electrodes used by the appellant herein are for repair and maintenance of the machinery during the period in question. Similar issue was before the Apex Court in the case oof Ramala Sahkari Chini Mills Ltd., Vs. CCE, Meerut [2016 (334) E.L.T. 3(S.C.)] which was referred to larger bench by the Lordships as reported in Ramala Sahkari Chini Mills Ltd Vs. CCE, Meerut-I 2015 (334) E.L.T. 3 (S.C.), wherein it held as under:
We have heard the learned counsels for the parties. We have also read and considered the order dated 29th November, 2010 [2010 (260) E.L.T. 321 (S.C.)] of this Court referring the matters to a larger bench for a decision on the question as to whether the definition of the term input in Rule 2(g) of the Cenvat Credit Rules, 2002 is to be understood to include items beyond the six items mentioned specifically in Rule 2(g). The answer to the question referred, according to us, is self- contained in the order of reference which has referred, inter alia, to a three Judge Bench decision of this Court in Regional Director, Employees State Insurance Corporation v. High Land Coffee Works of P.F.X. Saldanha and Sons & Anr. [(1991) 3 SCC 617]. There are other decisions of this Court by Coordinate Benches (three judge) on the issue which need not be adverted to specifically inasmuch as it has been clearly held in Regional Director, Employees State Insurance Corporation (supra) that the word include in the statutory definition is generally used to enlarge the meaning of the preceding words and it is by way of extension, and not with restriction. We answer the question referred to us in the above manner leaving it for the appropriate bench of this Court to decide on the factual parameters of the case(s) and the entitlement of the assessee(s) to Cenvat credit in the facts of each case.
6. It can be seen from the above reproduced reference answer by the Lordships it was left to the appropriate Courts to decide on the factual parameters of the case and entitlement of the assessees for availment of Cenvat credit.
7. In case in hand, though the learned Commissioner aptly has referred to the judgment of the Honble High Court of Andhra Pradesh the jurisdictional Honble High Court of Karnataka in the case of Alfred Herbert (India) Ltd. Vs. CCE, Bangalore-I 2010 (257) E.L.T. 29 (Kar.) has specifically held that Cenvat credit of the Customs duty paid on welding electrodes is eligible to be availed after the amendment to Rule 2000. The said judgment will apply in its full force.
8. Accordingly the following judgement of the jurisdictional High Court and upheld the impugned order is unsustainable (Order was pronounced in Open Court on .) M.V. RAVINDARAN JUDICIAL MEMBER RB 1