TMI Blog2009 (9) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... for repair and maintenance of plant and machinery are eligible for Cenvat credit as capital goods. 2. Heard both the sides. 2.1 Shri Ravi Raghvan, Advocate, ld. Counsel for the appellant pleaded that the Hon ble Rajasthan High Court in the case of Hindustan Zinc Ltd. v. UOI reported in 2008 (228) E.L.T. 517 (Raj.) has held that welding electrodes used for repair and maintenance of plant and machinery would be eligible for Cenvat credit as input as well as as capital goods; that in this case, Hon ble Rajasthan High Court has over-ruled the Larger Bench judgment of the Tribunal in the case of Jaypee Rewa Plant v. CCE reported in 2003 (159) E.L.T. 553 wherein the Larger Bench of the Tribunal had held that the welding electrodes are not eli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in the case of Kunhayammed v. State of Kerala reported in 2001 (129) E.L.T. 11 (S.C.) has held that Hon ble Supreme Court s order in the case of SAIL v CCE, Ranchi (supra) dismissing the SLP on the facts of the case is a speaking order which would be binding on all the Courts and the Tribunal and that this judgment of Hon ble Supreme Court had not been considered by the Hon ble Rajasthan High Court in the case of Hindustan Zinc Ltd. (supra). 3. I have carefully considered the submissions from both the sides and perused the records. The welding electrodes are used for repair and maintenance of the cement plant and by attaching the same with welding machine or in other words, as part of the welding machine. The welding machine is classif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Hon ble Rajasthan High Court undoubtedly would be binding on the parties to the said case. In this regard, the relevant observations of the Tribunal in para 27 of the order of the judgment are reproduced below : In the facts and circumstances of the case, therefore, though it cannot be said that the decision of the Hon ble Rajasthan High Court has been over-ruled by the Apex Court while dismissing the SLP in SAIL s case, fact remains that the Apex Court refused to interfere in the said decision for reason disclosed in the order dismissing the SLP, and hence bearing in mind the ruling of the Apex Court in the case of Kunhayammed read with in Dhanwanti Devi case, it would be binding upon the Tribunal. Having said so, we ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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