SUDHIR AGARWAL,J. - (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, Central Excise, Lucknow. This appeal has arisen from the judgment and order dated 14-7-2011 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.
(2.) The assessee, i.e., M/s. Nandganj Sihori Sugar Co. Ltd., 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.
(3.) Before this Court, appellant has contended that 'Welding Electrodes' would not fall in the category of 'capital goods' under the provisions of Rule 57Q of Central Excise Rules, 1944 (hereinafter referred to as "Rules, 1944"). The questions of law on which this appeal was admitted vide order dated 15-2-2012, required to be decided by this Court, are : "(i) Whether the learned appellate tribunal i.e. CESTAT is justified in allowing the credit on Welding Electrodes which have been used in repair and maintenance of plant and machinery and setting aside the penalty? (ii) Whether the learned Tribunal, i.e., Customs, Excise and Service Tax Appellate Tribunal is justified in passing the impugned order dated 14-7-2011 despite taking judicial notice of the fact that the Hon'ble Apex Court In Re, Ramala Sahkari Chini Mills Ltd. v. Commissioner of Central Excise, Meerut-I reported in 2001 (260) E.L.T. 321 (S.C.) has referred the identical issue before the Hon'ble Chief Justice of India for constituting a Larger Bench to decide the issue.";