TMI Blog2009 (1) TMI 250X X X X Extracts X X X X X X X X Extracts X X X X ..... -1-2009 - Shri Rakesh Kumar, Member (T) Shri Kapil Vaish, Chartered Accountant, for the Appellant. Shri Sansar Chand, DR, for the Respondent. [Order per : Rakesh Kumar, Member (T)].- This is an appeal against order-in-appeal dt. 19-3-07 passed by Commissioner (Appeals), Meerut-II by which the Commissioner (Appeals) has upheld the Cenvat credit demand of Rs. 1,24,297/- confirmed against the Appellant and a penalty of equal amount imposed on the Appellant by the Asstt. Commissioner vide order-in-original dt. 18-10-06. The point of dispute in this case is as to whether during the period of dispute i.e. during the period from April '04 to Oct '04, the Appellant is eligible for Cenvat credit in respect of Welding Electrodes used f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SLP against the Tribunal's judgment in the case of SAIL v. CCE, Ranchi (supra) pleaded that mere summary dismissal of SLP does not lay down any law and in this regard, he relied upon the Larger Bench judgment of this Tribunal in the case of Asstt. Engineer (Civil) PCC Poles Factory Others v CCE, Raipur reported in 2008 (232) E.L.T. 628 (Tri.-LB) = 2008 (89) RLT 216 (LB) wherein the Tribunal held that it is well settled that summary dismissal of SLP/Civil Appeal by Supreme Court does not amount to affirmation of the judgment/order of Court/Tribunal appealed against on merit and it merely means that Supreme Court had declined to interfere in the matter. Shri Vaish also cited the judgment of the Hon'ble Supreme Court in the case of Kun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his regard, he relied upon the Tribunal's order in the case of KCP Sugar Inds. Ltd. v CCE, Guntur reported in 2004 (178) E.L.T. 275. 2.1.2 Shri Vaish pleaded that the demand time is barred as SCN has been issued by invoking the extended period and the same was not available to the Deptt. as all the facts were known to the Department. 2.2 Shri Sansar Chand, Ld. DR defended the impugned order by placing reliance on the Hon'ble Supreme Court's judgment in the case of Steel Authority of India Ltd. v. Commissioner (supra) wherein the Hon'ble Supreme Court has dismissed the SLP filed by the same against the Tribunal's order in the case of SAIL v. CCE reported in 2008 (222) E.L.T. 233. He emphasized that from the words of the Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eligible for Cenvat credit both as input as well as capital goods. I agree with the Appellant that dismissal of SLP by Supreme Court against Tribunal's judgment in the case of SAIL v CCE, Ranchi does not lay down any law, as it is only summary dismissal and in this regard, I am supported by the judgment of this Tribunal in the case of Asstt. Engg. (Civil) P.C.C. Poles Factory Others v. CCE, Raipur reported in 2008 (89) RLT 216 wherein the Larger Bench of the Tribunal has clearly held that it is well settled that summary dismissal of SLP/Civil appeal by Supreme Court does not amount to affirmation of the judgment or the order of the Court/Tribunal appealed against on merit and merely means the Supreme Court has declined to interfere in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility of Cenvat credit in respect of spares, components or accessories of capital goods and thus the respondents have suppressed the fact of specific use of the said items with intention to avail the inadmissible Cenvat credit on the said items under the garb of spare, components or accessories". When the Department acknowledges that the fact of taking Cenvat credit in respect of welding electrodes and asbestos jointing sheets had been declared by the Appellants in the Cenvat credit declaration, it cannot allege that the Appellants have suppressed this information from it - the Departmental officers, while checking the Cenvat credit declaration and ER-1/R.T. 12 returns could have asked the Appellant about the specific use of the items. Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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