TMI Blog2015 (10) TMI 845X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant against Order-in-Appeal No. YDB/52 to 54/Bel/2010 dated 4.2.2010 passed by the Commissioner of Central Excise (Appeals), Mumbai-II. 2. After hearing for some time, both sides agree that the issue is squarely covered in favour of the appellant-assessee in earlier ruling of this Tribunal in case of Ultratech Cement Ltd. in Appeal No. E/1981/10-Mum vide Final Order No. A/482-484/15/SMB dated 6.2.2015, which is reproduced as under:- The issue involved in these appeals is as to whether the welding electrodes used in the maintenance of machine etc., the CENVAT Credit on the same is allowable or not? 2. Vide the impugned order dated 18.8.2010, the learned Commissioner (Appeals) in the appeal of the appellant, which is a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as packing material, or as fuel, or for generation of electricity or steam used in or in relation to manufacture of final products or for any other purpose, within the factory of production; (ii) all goods, except light diesel oil, high speed diesel oil, motor spirit, commonly known as petrol and motor vehicles, used for providing any output service; Explanation 1.- The light diesel oil, high speed diesel oil or motor spirit, commonly known as petrol, shall not be treated as an input for any purpose whatsoever. Explanation 2.- Input include goods used in the manufacture of capital goods which are further used in the factory of the manufacturer; but shall not include cement, angles, channels, Centrally Twisted Deform bar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Rewa Plant (supra) and also examined the ruling of the Hon'ble Apex Court in the case of Commissioner Vs. Jawahar Mills Ltd. 2001 (132) ELT 3 (SC) and J.K. Cotton Spinning Weaving Mills Co. Ltd. Vs. Sales Tax Officer 1997 (91) ELT 34 (SC) and have observed that judgment of the Hon'ble Supreme Court in the case of J.K. Cotton Spinning Weaving Mills (supra) has a material bearing on the controversy involved in the case before it. It was further noticed that Larger Bench of this Tribunal in the case of Jaypee Rewa case has referred to judgment in the case of J.K. Cotton's case, by reproducing a part of the head note, but then, the very significant continuing next sentence has been omitted from consideration, inasmuch as the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court in the case of UOI Vs. Hindustan Zinc Ltd. 2007 (214) ELT 510 (Raj), wherein the question involved was whether the Tribunal was right in law in allowing the Modvat credit on the item MS/SS plates in the maintenance and repair work of the machinery. The Hon'ble High Court has observed that such MS/SS plates are necessary for carrying out repairs and up-keeping of machinery directly involved in the manufacturing of the end products and accordingly held to be eligible for Modvat credit. Against the said ruling, the Revenue had gone in SLP before the Hon'ble Apex Court and by order dated 6.11.2006, the SLP was dismissed reported at 2007 (214) ELT A115 (SC). 5.3 The learned Counsel further urges that following the law laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal, observed that they are not inclined to agree with the submission of the assessee as the second explanation to the definition of 'input' under Rule 2(k) of the Cenvat Credit Rules puts it beyond doubt that unless the goods are used in the manufacture of capital goods, which are thereafter used in the factory, they do not qualify as inputs. Repair and maintenance being distinct from manufacture, CENVAT Credit cannot be claimed under Rule 2(k) of the Cenvat Credit Rules, 2004 on the duty paid on welding electrodes used for repair and maintenance of machinery. Accordingly, he prays for dismissing of the appeal. 7. Having considered the rival contentions, we find that from very plain reading of the definition of input as giv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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