2011 (2) TMI 784

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....or not as input or capital goods.   3. Shri Rajesh Chhiber, ld. Counsel for the appellants, citing the judgement of the Hon ble Chattisgarh High Court in the case of Ambuja Cement Eastern Ltd. reported in 2010 (256) ELT 690 and the judgement of the Hon'ble Rajasthan High Court in the case of Hindustan Zinc Ltd. reported in 2008 (228) ELT 517, wherein it was held that the Welding Electrodes used for repair and maintenance of plant and machinery are eligible for cenvat credit as input as well as capital goods, pleaded that the impugned order denying the cenvat credit in respect of these items is not correct.   4. Shri K.P. Singh, ld. Departmental Representative pleaded the Welding Electrodes used for repair and manufacture of plan....

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....ement Eastern Ltd. (supra) after discussing the judgement of the Tribunal in the case of Steel Authority of India Ltd. (supra) and also the order of the Supreme Court dismissing the SLP filed by the SAIL has observed that the dismissal of SLP by the Supreme Court by a non-speaking order does not lay down any binding precedent in this case and has held that the welding electrodes used for repair and maintenance are eligible for cenvat credit. In this regard, para-21 and 22 and 23 of the judgement of the same are reproduced below:-   21. Shri Bhishma Kinger, learned? counsel for the respondents/revenue, vehemently argued that in the matter of SAIL, the Tribunal at Kolkata relying upon the decision in Jaypee Rewa Plant has held that Modv....

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....ibration Gas Mixture (Welding equipments), but not admissible for explosives under Rule 57A of the Central Excise Rules, 1944, Civil appeals preferred by the revenue have been further dismissed by the Supreme Court.   It is settled law that refusing of special leave to file appeal by a non-speaking or speaking order does not attract the doctrine of merger, whereas where an award, appeal or revision is provided against the order passed by the Court, Tribunal or any other authority before a superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is....