- (1.) This is an appeal under Section 35G of Central Excise Tax Act, 1944 (hereinafter referred to as "Act, 1944") at the instance of Revenue, i.e., Commissioner, Customs and Central Excise, Meerut-I. This appeal has arisen from the judgment and order dated 12-3-2009 [2010 (250) E.L.T. 417 (Tribunal)] passed by Customs, Excise and Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as "Tribunal") allowing appeal of Assessee holding that 'Welding Electrode' is eligible for Cenvat Credit. The Assessee, i.e., M/s. U.P. State Sugar Corporation Limited, Village Bidvi, P.B. No. 27, District Saharanpur, which is an Industry engaged in manufacture of Sugar, had claimed that 'Welding Electrode' is specified under Head 8311.00 of Central Excise Tariff and used in repair and maintenance of 'Machines', therefore, would fall within the category of 'Capital Goods'. The claim was accepted by Tribunal allowing Assessee's appeal.
(2.) Before this Court, appellant has contended that 'Welding Electrodes' would not fall in the category of 'Capital Goods' under the provisions of Rule 57-Q of Central Excise Rules, 1944 (hereinafter referred to as "Rules, 1944"). The question of law required to be decided by this Court, is: "Whether Cenvat Credit is admissible on Welding Electrodes (falling under Chapter Heading No. 8311.00) as Capital goods used in the repair and maintenance notwithstanding the ruling of the Hon'ble Supreme Court?"
(3.) The period of dispute for which Cenvat Credit has been accepted is from November' 2004 to September' 2005. During this period, matter of Cenvat Credit was governed by Cenvat Credit Rules, 2004 (hereinafter referred to as "Rules, 2004") and term 'Capital Goods' was defined in Rule 2(a) of Rules, 2004 as under: "(a)" capital goods " means:-- (A) All following goods, namely:-- (i) all goods falling under Chapter 82, Chapter 84, Chapter 85, Chapter 90, Heading No. 6805, grinding wheels and the like, and parts thereof falling under Heading 6804 of the First Schedule of the Excise Tariff Act; (ii) pollution control equipment; (iii) components, spares and accessories of the goods specified at (i) and (ii) above; (iv) moulds and dies; jigs and fixtures; (v) refractories and refractory materials; (vi) tubes and pipes and fittings thereof; and (vii) storage tank, used- (1) in the factory of the manufacturer of the final products, but does not include any equipment or appliance used in an office; or (2) for providing output service;" (B) motor vehicle registered in the name of provider of output service for providing taxable service as specified in sub-clauses (f), (n), (o), (zr), (zzp), (zzt) and (zzw) of clause (105) of Section 65 of the Finance Act;";