TMI Blog2024 (1) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... On a perusal of rule 2(k) of CENVAT Credit Rules, 2004, we find that the definition therein is intended for such goods as are entitled to availment of credit in terms of rule 3 of CENVAT Credit Rules, 2004; steel plates do not come within that definition and, consequently, are not capital goods but, nonetheless, the installation of capital goods within the factory of manufacture by or on behalf of assessee is permissible towards availment of CENVAT credit on the parts deployed therein to qualify as inputs under rule 2(k) of CENVAT Credit Rules, 2004. That claim of the appellant herein has been discarded by the original authority on procedural grounds and had not been considered by the first appellate authority at all. The first appellate authority has failed to subject the order of the original authority, on the discarding of claim for coverage as inputs for availment of CENVAT credit on the part of the appellant, to scrutiny. This is an aspect that requires consideration by the original authority. The impugned order set aside and matter remanded back to the original authority to determine the claim of the appellant for coverage of credit within the meaning of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uded that failure on the part of the assessee to claim such in the regular returns and inability to prove that these were inputs deprived them of the benefit of that plea. 5. Learned Counsel for appellant submitted that the impugned order has solely relied upon the decision of the Larger Bench of the Tribunal in Jaypee Rewa Plant v. Commissioner of Central Excise, Raipur [2003 (159) ELT 553 (Tri.-LB)], holding that repairs and maintenance of machinery are not normally to be considered as process of manufacture and consequently ineligible for credit, to draw attention to the decisions of the Hon ble High Court of Bombay in ACC Ltd v. Commissioner of Central Excise, Pune II [2018 (361) ELT 343 (Bom.)], of the Hon ble High Court of Rajasthan in Hindustan Zinc Ltd v. Union of India [2008 (228) ELT 517 (Raj.)] and of the Hon ble High Court of Chhattisgarh in Ambuja Cements Eastern Ltd v. Commissioner of Central Excise, Raipur [2010 (256) ELT 690 (Chhattisgarh)] holding that the Larger Bench of the Tribunal had not considered the ratio of the decision of the Hon ble Supreme Court in J K Cotton Spinning Weaving Mills Co Ltd v. Sales tax Officer, Kanpur [1997 (91) ELT 34 (SC)] and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of credit of duty paid on steel plates of various grades on the finding that the definition of capital goods in rule 2(a) of CENVAT Credit Rules, 2004 was not allowed for non-conformity with that and that their alternative plea for consideration of eligibility as inputs in terms of rule 2(k) of CENVAT Credit Rules, 2004 was not to be entertained by recourse to procedural lacuna indicated in the order. On the other hand, the first appellate authority had rejected the appeal solely by relying upon the decision of the Larger Bench of the Tribunal on the ground that the said decision covered the issue in dispute. 8. Learned Counsel has pointed out that the Hon ble High Court of Bombay, in re ACC Ltd, had held that 11. In the case of Jaypee Rewa Plant (supra), it was held that the welding electrodes which are used for carrying out repairs to the plant and machinery are not used co-extensively for the purpose of the manufacture of final product. In the case of Hindustan Zinc Ltd. v. Union of India (supra), a Division Bench of Rajasthan High Court dealt with the decision of Jaypee Rewa Plant (supra). In paragraph 11, the Rajasthan High Court observed that in the case of Jayp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by rule 57Q of erstwhile Central Excise Rules, 1944 enabling availment of MODVAT credit on such capital goods and in the context of notification no. 67/95-CE dated 16th March 1995 granting exemption to capital goods that fell within the enumeration in rule 57Q of Central Excise Rules, 1944. The Hon ble Supreme Court held that such steel structures are not components which conformed to the definition of rule 57Q of Central Excise Rules, 1944 and, consequently, liable to duty in view of non-eligibility for the cited exemption. 10. The Hon ble Supreme Court was considering duty liability and reference to rule 57Q of Central Excise Rules, 1944, which could be considered as predecessor provision of rule 3 of CENVAT Credit Rules, 2004 as far as capital goods are concerned, was only in the context of the reference to that rule for the purpose of exemption from duties of central excise under section 3 of Central Excise Act, 1944 on goods manufactured and consumed captively. That complex situation does not arise herein. 11. We are concerned in this dispute with the entitlement for credit of duties paid on steel plates used for keeping the capital goods in operation for the manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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