Kisan Sahakari Chini Mills Ltd vs Cce, Meerut-I

(Arising out of OIA No.108-CE/MRT-I/12 dt.31.7.13 and OIA No.05/CE/APP/MRT-I/14 dt.13.1.14 passed by the CCE (Appeals), Meerut)

Date of Hearing/Decision: 12.05.2015

For Approval & signature:

Honble Mr.Ashok Jindal, Member (Judicial)

1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3. Whether their Lordships wish to see the fair copy of the order? seen 4. Whether order is to be circulated to the Department Authorities? Yes

Kisan Sahakari Chini Mills Ltd. Appellant

Vs.

CCE, Meerut-I Respondent

Present for the Appellant: Shri Jitin Mahajan, Advocate

Present for the Respondent: Shri R.K.Mishra, AR

Coram: Honble Mr.Ashok Jindal, Member (Judicial)

FINAL ORDER NO.51643-51644/2015

PER: ASHOK JINDAL

The appellant is in appeals against the impugned orders wherein (a) cenvat credit on welding electrodes has been denied which have been used by the appellant for repair and maintenance of plant and machinery and (b) the refund claim filed by the appellant on reversal of credit availed on welding electrodes was denied by the Commissioner (Appeals).

2. As both the appeals are arising out of common issue, therefore they are being disposed of by a common order.

3. The facts of the case are that the appellant is a manufacturer of sugar and molasses. They availed cevnat credit on welding electrodes which have been used by the appellant for repair and maintenance of plant and machinery. The show cause notice was issued to the appellant to deny cenvat credit on welding electrodes. The appellant reversed cenvat credit taken on welding electrodes. But the adjudicating authority has allowed the refund claim of credit already reversed by the appellant. Aggrieved with the said order, the Revenue filed appeal before the Commissioner (Appeals), who set aside the order of allowing refund claim to the appellant. Therefore, the appellant is before me by way of these two appeals.

4. Learned Counsel for the appellant for the appellant submits that the issue is covered by the decisions of various High Courts in the case of Ambuja Cements Eastern Ltd. vs. CCE, Raipur-2010 (256) ELT 690 (Chhattisgarh), Hindustan Zink vs. Union of India-2008 (228) ELT 517 (Rajasthan) and CCE, Bangalore vs. Alfred Herbert (India) Ltd.-2010 (257) ELT 29 (Karnataka). He submits that in the case of Sree Rayalaseema Hi-Strength Hypo Ltd. vs. CCE, Tirpati-2012 (278) ELT 167 (A.P), Honble Andhra Pradesh High Court has taken a contrary view and denied the credit on welding electrodes which were used by the appellant for repair and maintenance of plant and machinery. He strongly relied on the decision of the Tribunal in the case of Samruddhi Cement Ltd. vs. CCE, Indore-2013 (297) ELT 562 (Tri.-Del.) wherein this Tribunal after considering the decision of Sree Rayalaseema Hi-Strength Hypo Ltd. (supra) held that the appellant is entitled to take credit on welding electrodes used by the appellant for repair and maintenance of plant and machinery and in their own case reported in 2013 (292) ELT 394 (Tri.-Del.).

5. On the other hand, learned AR submits that there are divergent views of High Courts on the issue. Moreover, the issue is pending before the apex court in the case of Ramala Sahakari Chini Mills Ltd.-2010 (260) ELT 167 (SC). Therefore, credit cannot be allowed to the appellant.

6. Heard the parties and considered the submissions.

7. In the appellants own case, this Tribunal after considering the decisions of various High Courts having divergent views and allowed the credit to the appellant. Therefore, following the precedent decision of the appellants own case, I allow the cenvat credit on welding electrodes used for repair and maintenance of the plant and machinery. Therefore, I set aside the impugned order and allow the appeals with consequential relief, if any. Refund claim is also allowed to the appellant.

(Dictated & Pronounced in the open court)

(ASHOK JINDAL)

MEMBER (JUDICIAL)

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