TaxTMI 
TaxTMI 
2013 (3) TMI 427
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....g 73.08 are eligible for Cenvat credit; (iii) whether unmachined steel castings and rough HRCS castings used for replacement of damaged parts of the cement plant and machinery are eligible for Cenvat credit; (iv) whether rope asbestos/sheet steam jointing and similar items used for plugging the leakages are eligible for Cenvat credit; (v) whether nitrogen gas falling under Chapter 28 and PVC sheets, plastic sheets of Chapter 39 and fibre glass sheets of Chapter 70 are eligible for Cenvat credit; (vi) whether aluminium conductors falling under sub-heading 7614.10 are eligible for Cenvat credit? 1.1 The original Adjudicating Authority had disallowed the Cenvat credit in respect of the above items and on appeals being filed against those orders, the Commissioner (Appeals) vide impugned order-in-appeal dated 9-11-2005 upheld the original Adjudicating Authority's orders. 1.2 It is against this order of Commissioner (Appeals) that these appeals have been filed. 2. Heard both the sides. 3. Shri A.R. Madhav Rao, Advocate, the learned Counsel for the appellant, pleaded that the Chapter 72 items like M.S. Angles, Channels, Plates, Beams, Joists, etc. used for repair and maintenance o....
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....maintenance and, hence, the same would also be eligible for Cenvat credit, that PVC sheets plastic sheets and fibre glass sheets are used as lining material for and that in view of the above submissions, the impugned order is not correct. 4. Shri I. Baig, the learned Departmental Representative, defending the impugned order, pleaded that in all these cases the appellant have made only a general claim regarding use of the M.S. Angles, Channels, Beams etc. for repair and maintenance without specifying as to which item is used for repair and maintenance of which machine, that in any case, M.S. Angles, Channels, Beams, Joists etc. are neither covered by the definition of capital goods nor the same are covered by the definition of input, that the M.S. Angles, Channels, Beams etc. and other structures falling under Heading 73.08 are not eligible for Cenvat credit and in this regard he relies upon the judgment of the Larger Bench of the Tribunal in the case of Vandana Global Ltd. v. CCE, Raipur reported in 2010 (253) E.L.T. 440 (Tri.-LB), that aluminium conductors falling under Heading 7614.10 are not covered by the definition of capital goods, that it has not been specified by the appel....
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....udgment of Hon'ble Rajasthan High Court in the case of Union of India v. Hindustan Zinc Ltd. (supra) and in paras 21 and 22 of the judgment, Hon'ble High Court with regard to the Revenue's plea that the Tribunal in the case of Steel Authority of India Ltd. v. CCE reported in 2008 (222) E.L.T. 233 (Trib.) had held that welding electrodes used for repair and maintenance of plant and machinery are not eligible for Cenvat credit and the SLP filed by M/s. SAIL against the Tribunal's order has been dismissed by Hon'ble Supreme Court vide order reported in 2008 (229) E.L.T. A127 (S.C.), Hon'ble High Court observed that refusal 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, the decision by the subordinate forum merges in the decision by the superior forum and it is the later which subsists, remains operative and is capable of enforcement in the eyes of law, as held by Hon'ble Supreme Court in the case ....
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....edit. In view of this, the impugned order denying Cenvat credit in respect of these items is upheld. 5.5 As regards aluminium conductors, 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. We also find that the Tribunal in the case of Sarita Steel & Industries Limited v. CCE, Visakhapatnam-I (supra) has held that the aluminium conductors falling under sub-heading 7614.90 of the Tariff are not covered by the definition of capital goods. In view of this, the Cenvat credit has been rightly denied in respect of this item. 5.6 As regards nitrogen gas used in connection with repair and maintenance jobs, the same has been held to be eligible for Cenvat credit in view of the Tribunal's judgment in the case of CCE & Cus., Guntur v. Andhra Cements Ltd. reported in 2009 (247) E.L.T. 651 (Tri.-Bang.) wherein the Tribunal relying upon its judgment in the case of CCE & Cus., Guntur v. Andhra Cements Ltd. has held that oxygen, nitrogen and welding electrodes used for repair and mai....