Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *   CBIC issues draft rules for Customs valuation *  Top Headlines: Threshold for Benami deals, green bond investors, and more *  Govt aims 1-hour clearance for goods at all ports *  Exporters Allowed To Use RoDTEP, RoSCTL Scrips To Pay Customs Duty, Transfer Them; Rules Amended *  Millions of labourers to be affected by brick producers’ strike over hike in GST, coal rates *  Inauguration of ‘kendriya GST parisar’ *  Transporter can seek Release of Conveyance alone, not Goods under GST Act: Madras HC *  GST: Quoting of DIN Mandatory for Responding to Notice, Govt Modifies Portal *  Firms can soon file claims for GST credits of ?400 cr *  CBIC issues modalities for filing transitional credit under GST. *  Mumbai: Man creates 36 fake GST firms, arrested for input tax credit fraud of Rs 23 cr *  Report to restructure Commerce Ministry under study; idea is to set up trade promotion body: Goyal *  Firms can soon file claims for GST credits of ?400 cr *  Gambling Alert! Govt May Levy Up To 28% GST; UP, Bengal Back Move *  EPFO backs raising retirement age to ease pressure on pension funds *  India Moving Up Power Scale, Set to Become Third Largest Economy By 2030 *  Airfares Get Expensive: What Changes for Flyers From Today? *  IRCTC Latest News: Passengers to Pay More For Cancelling Confirmed Rail Tickets Soon. *  IBC prevails over Customs Act, says Supreme Court. *  As GST enters sixth year, a time for evaluation and reassessment *  There’s GST on daily essentials as Centre needs money to buy MLAs: Arvind Kejriwal *  Now, GST on cancellation of confirmed train tickets, hotel bookings *  GST kitty for top States could rise 20% in FY23, says Crisil *  French customs officials seize another cargo vessel over Russia sanctions *  TradeLens builds on Asia momentum with Pakistan Customs deal *  Hike tax on tobacco, reduce affordability & increase revenue: Civil society organizations to GST council *  Bihar: ?10 crore tax evasion on tobacco products detected in raids *  Centre failed on GST, COVID; would it be anti-national? Rajan on Infosys row *  Service Tax not Chargeable on Income Tax TDS portion paid by recipient: CESTAT grants relief to TVS *  Foreign portfolio investors make net investment of Rs 7575cr in Sep so far
Subject News *  Run-up to Budget: Monetary threshold for GST offences may rise to Rs 25 cr *   GST (Tax) E-invoice Must For Businesses With Over Rs 5 Crore Annual Turnover *   Both Central GST and excise duty can be imposed on tobacco, rules Karnataka high court *   CBIC Issues Clarification On Extended Timelines For GST Compliance *   CBIC Issues Clarification On Extended Timelines For GST Compliance *  Budget 2023- 9.6 crore gas connections *  GST: Tamil Nadu Issues Instructions for Assessment and Adjudication Proceedings *  GST: CBIC Extends Last Date for filing of ITC *  GST collection in September surpasses Rs 1.4 lakh crore for straight seventh time *  Dollar smuggling case: Customs chargesheet names M Sivasankar as key conspirator. *  Hike in GST rates fuels inflation *  Assam: CBI arrests GST commissioner in Guwahati *  GST fraud worth ?824cr by 15 insurance Cos detected *  India proposes 15% customs duties on 22 items imported from UK *  Decriminalising certain offences under GST on cards *  Surge in GST collections more due to higher inflation: India Ratings *  MNRE Notifies BCD and Hike in GST Rates as ‘Change in Law’ Events But With a Condition | Mercom India *   Solar projects awarded before customs duty change allowed cost pass-through *  Rajasthan High Court Dismisses Writ Petitions Challenging Levy Of GST On Royalty *   GST revenue in September likely at Rs 1.45 lakh crore *  Govt working on decriminalising certain offences under GST, lower compounding charge *  Building an institution like GST Council takes time, trashing is easy: Sitharaman *  GST collections in Sept may touch ?1.5 lakh crore *  KTR asks Centre to withdraw GST on handlooms *  After Gameskraft, More Online Gaming Startups To Receive GST Tax Claims *  Madras HC: AAR Application Filed Under VAT Does Not Survive After GST Enactment *  Threshold for criminal offences under GST law may be raised *  Bengaluru: Gaming company faces biggest GST notice of Rs 21,000 crore *  CBIC clarifies Classification of Cranes for GST, Customs Duty *  Customs seize gold hidden in bicycle in Kerala airport  

Comments

Print   |    |  Comment

PJ/Case Laws/2011-12/1441

Cenvat Credit on welding electrodes used in Repair and Maintenance of plant and machinery – availability of.

Case: L. H. Sugar Factory Ltd. versus Commissioner of C. Ex., Meerut – II
 
Citation: 2011 (272) E.L.T. 275 (Tri. – Del.)
 
Issue:- Cenvat Credit on welding electrodes used in Repair and Maintenance of plant and machinery – availability of.
 
Appeal filed by Revenue before the Tribunal without permission of Review by Committee of Two Commissioners – whether proper and correct?
 
Brief Facts:- Assessee is a manufacturer of sugar. They availed cenvat credit on welding electrodes as capital goods as the same were used in repair and maintenance of their plant and machinery which are covered under the definition of capital goods. They also availed cenvat credit on Steel plates, HR sheets, Section etc. which were used for repair of their plant and machinery which has become obsolete.
 
The Adjudicating Authority confirmed the demand along with inter­est and equivalent amount of penalty on the assessee.
 
Assessee filed appeals before the Commissioner (Appeals) who al­lowed the cenvat credit on Steel plates, HR shapes and sections etc but disal­lowed cenvat credit availed by the assessee on welding electrodes.
 
Aggrieved from the said order, both the parties are in appeal before this Tribunal.
 
Appellant’s Contention:- Assessee submits that cenvat credit on welding electrodes which are used for re­pair and maintenance of plant and machinery has been allowed by the High Court of Chattisgarh recently in the case of Ambuja Cements Eastern Ltd. v. CCE, Raipur [2010 (256) E.L.T. 690 (Chatt.)] and the same view has been taken by the High Court of Karnataka in the case of CCE, Bangalore v. Alfred Herbert (India) Ltd [2010 (257) E.L.T. 29 (Kar.)]. Accordingly, they are entitled to avail cenvat credit on welding electrodes which are used for maintenance and repair of plant and machinery as capital goods or inputs.
 
Assessee took a preliminary objection to the appeals filed by the Revenue saying that a proper approval of Review Committee has not been obtained by the Department before filing the appeal before this Tribunal as the Review consists of two Com­missioners but the Review has been made only by one Commissioner who was holding additional charge of Second Commissioner. As it is not the decision of the Committee of two Commissioners and it is decision of one Commissioner and hence appeal is not maintainable before this Tribunal as per Section 35 of the CEA, 1944.
 
Respondent’s Contention:- Revenue submitted that the Apex Court in the case of SAIL [2008 (229) E.L.T. Al27 (S.C.)], the Apex Court disallowed the cenvat credit on welding electrodes which are used for re­pair and maintenance of machinery and same view has been dealt with by the President of this Tribunal in the case of Oswal Overseas Ltd. v. CCE, Meerut-II [2010 (254) E.L.T. 338] wherein it was held that electrodes are consumable items which lost their identity and existence in their use, items could not be accessories and are not covered under Rule 2(a)(A) of Cenvat Credit Rules, 2004.
 
Reasoning of Judgment:- With regard to the issue of welding electrodes, the Tribunal held that the decision of the Apex Court in the case of SAIL involved the period prior to 2000 wherein the earlier provi­sion of modvat credit rules were available and in the case of Alfred Herbert (India) Ltd, the High Court of Karnataka has dealt with the issue and held that the decision of SAIL is not applicable after 2000 when the amendment in the Cenvat Credit Rules, 2000 took place. The decision of the President of this Tribunal is prior to the decision of the Karnataka High Court and the Chattisgarh High Court. Hence following the judicial discipline, the Tribunal is bound to follow the decision delivered by the High Court. Moreover, in view of the above discussion, the assessee is entitled to availment of cenvat credit on welding electrodes, which are being used in maintenance of plant and machinery as capital goods or inputs.
 
On the issue of obtaining permission of Committee of two Commissioners for filing appeal by Revenue before the Tribunal, the Tribunal noted that Section 35 (B) (I) (b) (clause ii) provides that every Committee constituted under Section (i) (sic) was consisted of two Commissioners. According to the said provision, there must be two persons or two Commissioner or Chief Commissioners to review the order placed before them and to arrive at a decision whether the appeal is to be filed or not. It was noted that in this case, although the Commissioner of Central Excise Meerut-I was holding the additional charge of Commissioner of Central Excise Meerut-II but that cannot be termed as a Committee of Commissioners constituted in the provisions of law. Hence, preliminary objection taken by assessee was valid objection. Appeals filed by Revenue not proper and correct as no proper permission from the Committee of Commissioners to file appeals before this Tribunal.
 
Decision:- Assessee’s appeal allowed. Revenue’s appeal dismissed.

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com