TaxTMI 
TaxTMI 
2023 (2) TMI 438
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.... issue pertaining to eligibility of welding electrode for repair and maintenance activity during the year 2008 (i.e. prior to amendment from 1st March, 2011) has been examined. The Tribunal while taking note of the decision in the case of Steel Authority of India Limited vs. CCE [2008 (222) ELT 233 (Tri.-Kol) took a view in favour of the assessee considering the decision of three High Courts wherein it has been held that credit is eligible on welding electrodes. It has also been observed therein that mere dismissal of SLP by the Supreme Court against the decision rendered by the Tribunal will not be considered to be law since not decided by the Apex Court. The relevant portion of the decision of the Tribunal is reproduced below:- ....
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....alty. Therefore, the impugned order upholding the Cenvat credit demand is set aside. The appeal filed by the appellant is allowed and the appeal filed by the Revenue is dismissed." 3. Reliance was also placed in the decision of the Tribunal in the case of Manikgarh Cement vs. Commissioner of Central Excise, Nagpur [Final Order No.A-85915/2022 dated 28.09.2022], relevant paras of which are as under:- "3. Appellant challenged the legality of the said order primarily on two grounds. The stand taken by the Appellant is that both Welding Electrodes and D.A. Gas qualify as inputs within the amended definition of Rule 2(k)(i) of the CENVAT Credit Rules, 2004 amended w.e.f. 01.04.2011 and alternatively they also qualify as capital....
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....VAT Credit. She further submitted that the sole ground of rejection of their appeal by the Commissioner (Appeals) is based on the judgment of the Hon'ble Bombay High Court (Nagpur Bench) reported in 2018 (360) ELT 86 (Bom.) Manikgarh Cement Vs. Commissioner of Customs and Central Excise, Nagpur in which the definition of input service that was available in CENVAT Credit Rules, 2001 has been taken into consideration since the period of dispute in that case was prior to 01.04.2011 and therefore, the Order-in-Appeal is required to be set aside since amended provision of the CENVAT Credit Rules had not been taken into consideration by the Commissioner (Appeals). In citing several decisions of this Tribunal including those reported in ....
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....1-TIOL- 1054-HC-AP-CX in the case of Sree Rayalaseema Hi-strength Hypo Ltd. Vs. Commissioner of Customs and Central Excise, Tirupati that it has been clearly held that manufacture and repair, maintenance are not the same process having link with the final product for which CENVAT Credit cannot be claimed under Rule 2(k) of the CENVAT Credit Rules, 2004, for which interference by the Tribunal in the order passed by the Commissioner (Appeals) is uncalled for. 5. I have gone through the written submissions of both the parties, relied upon case laws and perused the case record. As could be noticed from para 24 of the Order-in-Original, the adjudicating authority had observed that Welding Electrodes and D.A. Gas were used in the cement ....