2001 (12) TMI 736

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.... be considered in this appeal. 1.         Tubeless tyres for dumpers 2.         Welding electrodes 3.         Arc welding generator 4.         Dissolved Acetylene Gas used for welding 3. Shri Nambiar, appearing for the appellants submitted that he is not pressing the issue with reference to eligibility of Modvat credit on dissolved acetylene gas. Accordingly, issue with reference to eligibility of credit on dissolved acetylene gas is dismissed as withdrawn. 4. Shri Nambiar submitted that tubeless tyres are parts of dumpers. Dumpers are used in relation to ....

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....tive of the use. She submitted that credit may be permissible if the welding electrodes and generator as such are used in the manufacture but if they are used in repair of the machinery credit as such is not admissible and in support of her contention she referred to the following decisions. 2001 (130) E.L.T. 873 (Tribunal) [CCE, Belgaum v. Bellary Steels] 1998 (104) E.L.T. 541 (Tribunal) [Vivek Alloys v. CCE, Trichy] 2000 (121) E.L.T. 843 (Tribunal) [K.L. Rathi Steels Ltd.] 2001 (130) E.L.T. 819 (Tribunal) [G.D. Rathi Steels v. CCE, Delhi] 6. I have considered the pleas made by both sides with reference to welding electrodes and arc welding generator. On perusal of the records, I find that nowhere it was charged that it....

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.... referred to above. The Tribunal held that the above items would be covered by explanation 'plant' being item necessary for the assessee to carry on his business and being an item not in the nature of consumable but an item having fairly high degree of durability. It therefore satisfies the definition of 'plant' and accordingly Modvat credit is admissible. The observations are in Paras 37, 38, 39 & 40 of the said judgment and are relevant in this context which are reproduced as under :- "37. It has been contended by the Revenue that for an item to be eligible for credit, and to qualify as capital goods, it has to pass two tests. Firstly, the item should be a machine, machinery, plant, equipment, apparatus, tool or appliance. Secondly, it....