TaxTMI 
TaxTMI 
2015 (11) TMI 366
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....nd set aside the penalty of equal amount. 2. The fact of the case is that the appellant had availed modvat credit on spot welding electrodes under capital goods from 10/12/1998 to 12/11/2001 and 13/11/2001 to Aug 2002 amounting to Rs. 29,354/- and 13,580/- respectively. The department issued show cause notice F. No. V. Ch(15) 82/Laxmi/Adj/2002/21 dated 5/1/2004 alleging that the spot welding electrodes is a consumable product and this item was not specified as capital goods in terms of either erstwhile Rule 57 Q or Rule 2(a) of the Cenvat Credit Rules, 2001. The show cause notice further alleged that the credit under Rule 57 Q and Rule 3 of the Cenvat Credit Rules, 2001 was not admissible. The show cause was adjudicated by the Assistant ....
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....y are not entitled for benefit of modvat/Cenvat credit as Capital Goods since not specified under Rule, 57Q. He also held that both the decisions mentioned in Hon'ble Tribunal's said order dted 14/11/2007 are squarely applicable in the present case. Therefore, the appellant vide OIO dated 26.3.2008 disallowed the modvat/Cenvat credit of Rs. 42,934/- availed on Spot Welding Electrodes and ordered for recovery of the same under provisions of Rule 57 U(8), Rule 57 AH(1) of Central Excise Rues, 1944 and Rule 12 of Cenvat Credit Rules, 2001 read with Section 11A of Central Excise Act, 1944. The Asstt. Commissioner also imposed penalty of Rs. 42,934/- under Rule 173Q of Central Excise Rules, 1944 and Rule13 of Cenvat Credit Rules, 2001 read with ....
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....sion of this Tribunal in the cases of M/s. Triveni Engineering and Industries Limited and M/s. Jaypee Rewa Plant engineering. He also held that case laws quoted by the appellant could not be examined at this stage since adjudicating authority was directed by Hon'ble Tribunal to examine case in light of two case laws stated earlier. Aggrieved by the said order of the Commissioner(Appeals), the appellant is before me. 3. None appeared on behalf of the appellant however written submission found on record according to which they submitted that it has not been appreciated by the authorities below that the most prominent fact of the present case is that the spot welding electrodes are used by the appellant for welding of rikshaw body and hence....
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....des used for repair and maintenance of plant and machinery whereas in the present case spot welding electrodes are used in manufacturing of final product therefore in my considered view the lower authority should not have brushed aside the fact that there is difference in use of welding electrodes in the M/s. Jaypee Rewa Plant case and in the present case. It is settled law that ratio of any judgment cannot be applied without appreciating the facts of particular case therefore even though this Tribunal has directed to re-consider case in the light of larger bench decisions, it was obligation on the part of the adjudicating authority to appreciate the fact of the present case and thereafter if it is found that the fact of the case is differe....
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....ppellant is that of a Division Bench. We hold that the Division Bench decision shall prevail over the Single Member Bench decision. We follow the ratio of this Tribunal in the Case of M/s. TELCO (supra) and hold that Modvat credit is available on Spot Welding Electrodes. 2001 (130) E.L.T. 776 (Tri. - Del.) COMMISSIONER OF CENTRAL EXCISE, NEW DELHI Versus MARUTI UDYOG LTD. 3. On the other hand, learned DR Shri Sanjiv Srivastava for the Revenue submits that Division Bench judgment in the case of M/s. Telco (supra) has not correctly distinguished the Single Member's judgment supra. The said Division Bench has drawn a wrong analogy from the Tribunals judgment in the case of M/s. Gujarat Alkalies case reported in 1989 (....