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of <h1>Tribunal upholds denial of Cenvat credit for certain items, remands others for further adjudication.</h1> <h3>HINDUSTAN ZINC LTD. Versus COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II</h3> The Tribunal upheld the denial of Cenvat credit for M.S. Angles, Channels, Plates used for supporting structures, and aluminium conductors. However, it ... CENVAT credit denied on M.S. Angles, Channels, Plates etc. used for repair and maintenance of plant and machinery - Held that:- As decided in Union of India v. Hindustan Zinc Ltd. (2006 (5) TMI 44 - HIGH COURT RAJASTHAN) M.S./S.S. Plates used in the workshop for repair and maintenance of the machinery, which is used for the manufacture of final product are eligible for Cenvat credit. Also in the case of Ambuja Cements Eastern Ltd. v. CCE, Raipur (2010 (4) TMI 429 - CHHAITISGARH HIGH COURT) held that welding electrodes used for repair and maintenance of the plant and machinery are entitled for Cenvat credid relieng upon the judgment of Union of India v. Hindustan Zinc Ltd. (supra).Thus the items used for repair and maintenance of plant and machinery would be eligible for Cenvat credit and the Commissioner (Appeals)’s order denying Cenvat credit in respect of the same is not sustainable - In favour of assessee. Eligibility of asbestos jointing sheets for Cenvat credit - Held that:- Since the same is used for plugging the leakages in the pipes, it has to be treated as an item used for repair and maintenance and hence the same would be eligible for Cenvat credit. See Oswal Overseas Ltd. v. CCE, Meerut-II (2010 (1) TMI 522 - CESTAT, NEW DELHI) wherein held that asbestos jointing sheets used for plugging the holes in the pipelines installed in the factory and thereby allowing smooth flow of liquid from one equipment to another during the process of manufacture, are components/integral part of the machinery and hence, are eligible for Cenvat credit as capital goods - In favour of assessee. Eligibility of rough castings, unmachined steel castings, HRCS castings etc. - Held that:- For Cenvat credit these items are used as a replacement for parts of the machinery and hence the same have to be treated as components and accessories of the cement, plants and machinery. Therefore, the Commissioner (Appeals)’s order denying Cenvat credit in respect of these items is not sustainable - In favour of assessee. Eligibility of M.S. Angles, Channels, Joists, Iron and Steel structures, supporting frame etc. used for erecting supporting structures - Held that:- Thus calim settled against the appellant by the judgment of Vandana Global Ltd. v. CCE, Raipur (2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)), wherein this Tribunal held that foundation and supporting structures embedded to earth are capital assets and the same do not qualify as capital goods as defined in Rule 2(a) of Cenvat Credit Rules and hence the steel items used for erection of the supporting structures are not eligible for Cenvat credit. Against assessee Eligibility of aluminium conductors - Held that:- As the same are classifiable under sub-heading 7614.90 of the tariff which is not the heading specified in the definition of capital goods. It is also not the case of the appellant that the aluminium conductors are components or accessories of any item of capital goods. Thus as decided in Sarita Steel & Industries Limited v. CCE, Visakhapatnam-I (supra) the aluminium conductors falling under sub-heading 7614.90 of the Tariff are not covered by the definition of capital goods. Thus the Cenvat credit has been rightly denied in respect of this item - Against assessee. Eligibility of nitrogen gas used in connection with repair and maintenance jobs - Held that:- It has been held to be eligible for Cenvat credit in view of the judgment in the case of CCE & Cus., Guntur v. Andhra Cements Ltd. reported in 2009 (2009 (3) TMI 807 - CESTAT, BANGALORE) wherin held that oxygen, nitrogen and welding electrodes used for repair and maintenance of plants and machinery would be covered by the definition of ‘input’ as given in Rule 2(k) of the Cenvat Credit Rules, 2004, as the same is very vide and would cover even the items used for repair and maintenance of the plant and machinery - In favour of assessee. Eligibility of PVC sheets and synthetic rolls of plastic sheets and fibre glass sheets - Held that:- The CCE (Appeals) has denied Cenvat credit in respect of these items without going into the user of these items to find out whether the same were used in or in relation to the manufacture of the finished goods. In view of this, it difficult to uphold the order of CCE (Appeals) in this regard - in favour of assessee. Issues Involved:1. Eligibility of M.S. plates, beams, angles, channels, sheets, etc., for Cenvat credit.2. Eligibility of iron and steel structures and tower material under Chapter Heading 73.08 for Cenvat credit.3. Eligibility of unmachined steel castings and rough HRCS castings for Cenvat credit.4. Eligibility of rope asbestos/sheet steam jointing and similar items for Cenvat credit.5. Eligibility of nitrogen gas, PVC sheets, plastic sheets, and fibre glass sheets for Cenvat credit.6. Eligibility of aluminium conductors under sub-heading 7614.10 for Cenvat credit.Detailed Analysis:1. Eligibility of M.S. Plates, Beams, Angles, Channels, Sheets, etc. for Cenvat Credit:The Tribunal found that items like M.S. Angles, Channels, Plates, Beams, Joists, etc., used for repair and maintenance of plant and machinery are eligible for Cenvat credit. This conclusion was supported by various judgments, including the Hon'ble Rajasthan High Court in Union of India v. Hindustan Zinc Ltd., where M.S./S.S. Plates used for repair and maintenance were deemed eligible for Cenvat credit. The Hon'ble Chhattisgarh High Court in Ambuja Cements Eastern Ltd. v. CCE, Raipur also supported this view, holding that items used for repair and maintenance are entitled to Cenvat credit. Consequently, the Tribunal deemed the Commissioner (Appeals)'s order denying Cenvat credit in this regard as unsustainable.2. Eligibility of Iron and Steel Structures and Tower Material under Chapter Heading 73.08:The Tribunal upheld the denial of Cenvat credit for M.S. Angles, Channels, Joists, Iron and Steel structures, supporting frames, etc., used for erecting supporting structures. This decision was based on the judgment of the Larger Bench of the Tribunal in Vandana Global Ltd. v. CCE, Raipur, which held that steel items used for erection of supporting structures are not eligible for Cenvat credit as they do not qualify as capital goods under Rule 2(a) of the Cenvat Credit Rules.3. Eligibility of Unmachined Steel Castings and Rough HRCS Castings for Cenvat Credit:The Tribunal found that rough castings, unmachined steel castings, HRCS castings, etc., used as replacements for parts of machinery, should be treated as components and accessories of cement plants and machinery. Therefore, the Commissioner (Appeals)'s order denying Cenvat credit for these items was deemed unsustainable.4. Eligibility of Rope Asbestos/Sheet Steam Jointing and Similar Items for Cenvat Credit:The Tribunal held that asbestos jointing sheets used for plugging leakages in pipes should be treated as items used for repair and maintenance, thus making them eligible for Cenvat credit. This view was supported by a previous Tribunal judgment in Oswal Overseas Ltd. v. CCE, Meerut-II, which classified asbestos jointing sheets as components/integral parts of machinery.5. Eligibility of Nitrogen Gas, PVC Sheets, Plastic Sheets, and Fibre Glass Sheets for Cenvat Credit:The Tribunal found that nitrogen gas used in repair and maintenance jobs is eligible for Cenvat credit, referencing the Tribunal's judgment in CCE & Cus., Guntur v. Andhra Cements Ltd. However, the eligibility of PVC sheets, synthetic rolls of plastic sheets, and fibre glass sheets was not conclusively determined and was remanded to CCE (Appeals) for de novo adjudication based on their usage.6. Eligibility of Aluminium Conductors under Sub-Heading 7614.10 for Cenvat Credit:The Tribunal upheld the denial of Cenvat credit for aluminium conductors classified under sub-heading 7614.90, as they do not fall under the specified heading in the definition of capital goods. The Tribunal referenced its decision in Sarita Steel & Industries Limited v. CCE, Visakhapatnam-I, which held that aluminium conductors are not covered by the definition of capital goods.Conclusion:The Tribunal upheld the Commissioner (Appeals)'s order denying Cenvat credit for M.S. Angles, Channels, Plates used for supporting structures, and aluminium conductors. However, it set aside the denial of Cenvat credit for M.S. Plates, Beams, Angles used for repair and maintenance, unmachined steel castings, rough HRCS castings, asbestos jointing sheets, nitrogen gas, and sheets of PVC, plastic, and fibre glass, remanding these items for further adjudication based on their usage. The appeals were disposed of accordingly.
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