TMI Blog2006 (10) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1944 against the order of the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi dated 22 nd January, 2004 allowing the appeal filed by the respondent manufacturer about its claim to avail cenvat credit in respect of rope asbestos and graphite asbestos classified under sub head 6805.90 and wire rope is classified under sub-head 7312.10 under the Tariff Act. 2. The following substantial question of law was framed at the time of admitting the appeal:- "Whether rope asbestos and graphite asbestos used by the manufacturer for sealing the holes in their plant and machinery are covered under the definition of Capital goods in terms of Rule 2(b) of the erstwhile Cenvat Credit Rules, 2001 and, therefore, the credit was ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also. The Tribunal has found that for subsequent period the Commissioner (Appeals) has allowed modvat credit on the very goods and in view thereof the cenvat credit availed earlier was held to be not valid. 7. The learned counsel for the appellant was not in a position to say whether any appeal was preferred against the order of Commissioner (Appeals) allowing the respondent to avail cenvat credit in respect of both the items as capital goods considering them to be accessories of the main plant. The leaned counsel for the respondent positively asserted that it has not received any notice so far that any appeal has been filed against the order of the Commissioner. He also placed reliance on a Bench decision of this Court in 2006(3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking change in the goods. It cannot be gainsaid that where there is a plant and machinery with which activity of manufacturing is going on, the principal plant and machinery suffers wear and tear in the course of its operation and requires regular back up through proper up-keep and normal maintenance for which the supplementary and subordinate machinery are required to be kept at site." 9. In the present case on facts it is not a disputed issue that the rope asbestos/graphite asbestos are used for sealing and flag / joint/ducts/ chutes etc. in all cement manufacturing machinery and part of its maintenance requirement for smooth and efficient running of the machinery and other items namely wire rope is used as a hoist in raw mill, cemen ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
