TMI Blog2013 (7) TMI 787X X X X Extracts X X X X X X X X Extracts X X X X ..... envat Credit – Decided in favor of Assessee. - E/1030/2010-EX[SM] - - - Dated:- 6-6-2013 - Shri Rakesh Kumar, J. For the Appellant: Sh. S.D.Gaur, Advocate For the Respondent: Sh. V.P.Batra, DR JUDGEMENT Per Rakesh Kumar: The appellant are a manufacturer of sugar and molasses chargeable to Central Excise duty. The dispute in this case is as to whether during Nov. 2007 to July 2008 period, welding electrodes used for repair and maintenance of plant and machinery, are eligible for Cenvat Credit or not. The Jurisdictional Assistant Commissioner vide order-in-original dtd. 31.07.2009 denied the Cenvat Credit on the welding electrodes and confirmed the Cenvat Credit demand of Rs. 76,254/- along with interest and also impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for repair and maintenance of plant and machinery are not eligible for Cenvat Credit, that SLP filed by SAIL against this order of the Tribunal was dismissed by Apex Court vide judgment reported in 2002(139) ELT A-294 (SC). that Apex Court s order would be binding on the Tribunal, that the same view has been taken by Hon ble Andhra Pradesh High Court in the case of Sree Rayalaseema Hi-Strength Hypo Ltd. Vs. Commissioner of Custom Central Excise, Tirupati reported in 2012(278) ELT-167(A.P.) observing that repair and maintenance is an activity distinct from manufacture, that Apex Court in the case of Grasim Industries Ltd. Vs. Union of India reported in 2011(273) ELT-10(SC) has also held that scrap or waste arising from repair maintena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Officer, Kanapur reported in 1997(91) WLT-34 (SC) while interpreting the scope of the expression used in the manufacture of in Section 8(3)(b) of the Central Sales Tax Act, 1956, has held as under. In our judgment if a process or activity is so integrally related to the ultimate manufacture of goods so that without that process of activity manufacture may, even if theoretically possible, be commercially in-expedient, goods intended for use in the process or activity, as specified in Rule 13 will qualify for special treatment. This is not to say that every category of goods used in connection with manufacture or in relation to manufacture or which facilitates the conduct of manufacture will be included within Rule 13. Attention in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r determining the eligibility of a particular item for Cenvat Credit, what has to be seen is as to whether without use of that item or without the activity in which that item is used, the manufacture of final product, though theoretically feasible. is commercially expedient or possible or not. It is nobody s case that manufacturing activity is commercially feasible with malfunctioning machinery, leaking pipes, tubes and tanks. Therefore repair and maintenance of plant and machinery, though by itself not a manufacturing activity, has to be treated as an activity in relation to manufacture and inputs used in repair maintenance would have to be treated as goods used in relation to manufacture. 7. Moreover I find that Hon ble Chhattisgarh H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Sree Rayalaseema Hi-Strength Hypo Ltd. reported in 2012(278) ELT-167(A.P.) decided by Hon ble Andhra Pradesh High Court, the point as to whether regular repair maintenance of the plant and machinery by using welding electrodes, manufacturing operations, were commercially feasible, had not been considered. In any case, when three other high courts are mentioned above have held that welding electrodes used for repair and maintenance of plant and machinery are eligible for Cenvat Credit, it is there judgments which will hold the field. 9. In view of the above discussion I hold that impugned order is not sustainable. The same is set aside. The appeal is allowed. (Order dictated in the open court) - - TaxTMI - TMITax - Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
