TMI Blog2008 (7) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... uldeep Mathur, for the respondents. [Order] - This appeal, by the assessee, has been filed against the order of the tribunal dated 26.7.2005, dismissing the same, by relying upon a larger Bench judgment of the Tribunal, in Jaypee Rewa Plant Vs. CCE, reported in 2003 (159) ELT 553, and thereby upholding the disallowance of modvat/ cenvat credit. 2. The necessary facts are, that the assessee was issued a show cause notice, on the ground, that assessee has availed modvat/cenvat credit on welding electrodes, during June, 2003 to March, 2004, treating the same as capital goods, whereas the same appeared not to be covered under the definition of capital goods. 3. The assessee contested the notice and contended, that while electrodes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther appeal filed before the learned Tribunal was dismissed. 7. This appeal was admitted on 13.1.2006, by framing the following substantial question of law:- "Whether welding electrodes used for repairs and maintenance of plant and machinery are eligible for cenvat credit both as capital goods as well as inputs". 8. We have heard learned counsel for the parties and have gone through the judgment in Jaypee Rewa plant's case, as relied upon by the learned counsel for the department, and have also gone through the judgment of Hon'ble Supreme Court, in CCE Vs. Jawahar Mills, reported in 2001 (132) ELT 3, relied upon by the learned counsel for the appellant. 9. In judgment of Hon'ble Supreme Court in Jawahar's case, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not even furnished details of any capital goods for captive consumption, to enable the adjudicating authority to ascertain, whether such goods were covered by definition of capital goods. Thus, for want of evidence to show, that any part of any electrodes, and gases, was used in the manufacture of any capital goods for captive consumption, the claim was negated. 11. In our view, the judgment of Hon'ble Supreme Court, in JK Cottons SPG. WVG Mills Co. Ltd Vs. Sales Tax Officer, Kanpur, reported in 1997 (91) ELT 34, has a material bearing on the controversy involved in the present case. It may be noticed, that the tribunal in J.P. Rewa case has referred to this judgment of Hon'ble Supreme Court in JK Cotton's case, by repr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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