TaxTMI 
TaxTMI 
2009 (1) TMI 250
X X X X Extracts X X X X
X X X X Extracts X X X X
....pellant by the Asstt. Commissioner vide order-in-original dt. 18-10-06. The point of dispute in this case is as to whether during the period of dispute i.e. during the period from April '04 to Oct '04, the Appellant is eligible for Cenvat credit in respect of Welding Electrodes used for repair and maintenance of the machinery and asbestos jointing sheets used for sealing the leaking tubes and pipes. The Appellant had initially taken capital Cenvat credit in respect of these two items but subsequently a SCN was issued on 22-11-05 invoking extended period for recovery of Cenvat credit in respect of these two items along with interest and imposing penalty on the Appellant. 2. Heard both the sides. 2.1 Shri Kapil Vaish, Chartered Accounta....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eme Court does not amount to affirmation of the judgment/order of Court/Tribunal appealed against on merit and it merely means that Supreme Court had declined to interfere in the matter. Shri Vaish also cited the judgment of the Hon'ble Supreme Court in the case of Kunhayammed v. State of Kerala reported in 2001 (129) E.L.T. 11 (S.C.) wherein Supreme Court in paras - 14, 16, 41 & 44, held that "there are two stages in the disposal of Special Leave Petition filed under Article 136 of the Constitution - the first stage is granting the special leave to appeal and second stage is hearing the appeal, and once leave to appeal is granted, the order appealed against is put in jeopardy, though it continues to be binding unless it is nullity or is st....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rity of India Ltd. v. Commissioner (supra) wherein the Hon'ble Supreme Court has dismissed the SLP filed by the same against the Tribunal's order in the case of SAIL v. CCE reported in 2008 (222) E.L.T. 233. He emphasized that from the words of the Supreme Court's order, it is clear that SLP has been dismissed after considering the facts of the case and therefore, this judgment has to be treated as law laid down by the Supreme Court on this issue. He also pleaded that Cenvat credit is not available, in respect of asbestos jointing sheets, as observed in the order-in-original, the issue of eligibility of Cenvat credit in respect of asbestos jointing sheets has been referred to a Larger Bench. On the question of limitation, he pleaded that wh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is well settled that summary dismissal of SLP/Civil appeal by Supreme Court does not amount to affirmation of the judgment or the order of the Court/Tribunal appealed against on merit and merely means the Supreme Court has declined to interfere in the matter. I also find that this view is supported by Hon'ble Supreme Court in the case of Kunhayammed v. State of Kerala (supra). Therefore, I hold that Cenvat credit is available in respect of welding electrodes used for maintenance and repairs of the plant and machinery. 4. As regards the asbestos jointing sheet, the same is used for sealing the leaking pipes and tubes without which the sugar plant cannot function. In my view the ratio of Hon'ble Rajasthan High Court in the case of Hindusta....