GST Helpdesk   Subscription   Demo   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2015 (11) TMI 366 - CESTAT MUMBAI

2015 (11) TMI 366 - CESTAT MUMBAI - TMI - Demand of Cenvat credit - Welding electrodes - Held that:- Appellant has availed the modvat credit in respect of spot welding electrodes which has been used in the production of motor vehicle by the appellant. Though the coordinate bench of this Tribunal while remanding the matter directed to adjudicating authority to decide the matter a fresh in the light of larger bench judgments of M/s. Triveni Engineering and Industries Limited and M/s. Jaypee Rewa P .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e. - since spot welding electrodes used in the manufacture of final product i.e. motor vehicle, it is qualified as input and therefore credit is otherwise admissible as input. Though the appellant has availed Cenvat Credit under capital goods that alone cannot disentitled appellant from availing the credit under input. As regard admissibility of modvat credit in respect of spot welding electrodes used in the manufacture of final product - appellant is entitled for modvat credit in respect of spo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

in Ld. Commissioner(Appeals) has modified Order-in-Original No. 01/DMD/2008 dated 26/3/2008 by upholding the demand of Cenvat credit amounting ₹ 42,934/- and set aside the penalty of equal amount. 2. The fact of the case is that the appellant had availed modvat credit on spot welding electrodes under capital goods from 10/12/1998 to 12/11/2001 and 13/11/2001 to Aug 2002 amounting to ₹ 29,354/- and 13,580/- respectively. The department issued show cause notice F. No. V. Ch(15) 82/Laxm .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

5 dated 30.11.2005 wherein the show cause notice dated 5.1.2004 demanding central excise duty of ₹ 42,934/- in respect of Spot Welding Electrodes was withdrawn. Being aggrieved by the said OIO dated 30.11.2005; the department filed an appeal with the Commissioner(Appeals), Aurangabad who vide OIA No. AKD(21)29/07 dated 13.2.2007 decided the matter thereby upholding the OIO No. 50/DMD/2005 dated 30.11.2005 and the departmental appeal was dismissed. Being aggrieved with the OIA dated 13.2.20 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

al Excise, Merrut[2005(186)ELT 158(Tri. LB)]. The denovo adjudication of the above case was done by the Assistant Commissioner, Central Excise and Customs, Aurangabad-II division vide OIO No. 01/DMD/2008 dated 26.3.2008, who observed that the Welding electrodes are not eligible for modvat/Cenvat credit i.e. they are not called as inputs as the same are not used for manufacturing of the final products and also they are not entitled for benefit of modvat/Cenvat credit as Capital Goods since not sp .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e Act, 1944. The Asstt. Commissioner also imposed penalty of ₹ 42,934/- under Rule 173Q of Central Excise Rules, 1944 and Rule13 of Cenvat Credit Rules, 2001 read with Section 11AC of Central Excise Act, 1944. Recovery of interest at appropriate rate under Rule 13 of Cenvat Credit Rules, 2001 read with section 11AA of Central Excise Act 1944 was also ordered vide said OIO dated 26.3.2008. Being aggrieved by the said OIO dated 26.3.2008, the appellants have filed the present appeal on the g .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

oducts. The welding electrodes are not used by the appellant for maintenance or repairs in their factory. The appellants also stated that the respondent had exceeded the jurisdiction because the Hon ble Tribunal has remanded the matter for limited purpose of re-considering the issue in the light of decision of larger bench of the Tribunal. The adjudicating authority had no jurisdiction to impose penalty. The Commissioner(Appeals) though upheld confirmation of demand but dropped penalty. Ld. Comm .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

arlier. Aggrieved by the said order of the Commissioner(Appeals), the appellant is before me. 3. None appeared on behalf of the appellant however written submission found on record according to which they submitted that it has not been appreciated by the authorities below that the most prominent fact of the present case is that the spot welding electrodes are used by the appellant for welding of rikshaw body and hence used in processing its inputs for manufacturing dutiable final products. The w .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

lower authority had no option except to follow those judgments and accordingly they passed the correct order which does not require any interference. Accordingly, he prayed for dismiss the appeal of the appellant. 5. I have carefully considered the submission made by Ld. A.R. and written submission made by the appellant and also ground of appeal. 6. I find that in the present case the fact involved that appellant has availed the modvat credit in respect of spot welding electrodes which has been .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

pot welding electrodes are used in manufacturing of final product therefore in my considered view the lower authority should not have brushed aside the fact that there is difference in use of welding electrodes in the M/s. Jaypee Rewa Plant case and in the present case. It is settled law that ratio of any judgment cannot be applied without appreciating the facts of particular case therefore even though this Tribunal has directed to re-consider case in the light of larger bench decisions, it was .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

manufacture of final product i.e. motor vehicle, it is qualified as input and therefore credit is otherwise admissible as input. Though the appellant has availed Cenvat Credit under capital goods that alone cannot disentitled appellant from availing the credit under input. As regard admissibility of modvat credit in respect of spot welding electrodes used in the manufacture of final product this Tribunal in the following cases allowed the credit.:- (Tri-2002 (150) E.L.T. 969 (Tri. - Del.) MARUT .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ngle Member Bench. The same Bench subsequently reviewed its thinking, whereas the decision cited and relied upon by the ld. Counsel for the Appellant is that of a Division Bench. We hold that the Division Bench decision shall prevail over the Single Member Bench decision. We follow the ratio of this Tribunal in the Case of M/s. TELCO (supra) and hold that Modvat credit is available on Spot Welding Electrodes. 2001 (130) E.L.T. 776 (Tri. - Del.) COMMISSIONER OF CENTRAL EXCISE, NEW DELHI Versus MA .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version