- (1.) THIS Court admitted the appeal on 4th February, 2009 on the following substantial question of law:- "Whether on the facts and in the circumstances of the case, the learned Tribunal was justified in allowing the cenvat credit on items M.S. Plate, SS Plate, Beams, Hr Coils, plain Plates, Channels, Angles Joist etc, used in fabrication and erection of various sections in existing plants of the assessee by treating the same as 'capital goods' within the meaning of Rule 2(a) of the Cenvat Credit Rules, 2004?"
(2.) LEARNED counsel for respondent/assessee submitted that issue involved in the present case has already been considered and decided by Division Bench of this Court in the case of respondent/assessee itself reported in 2007 (214) E.L.T. 510 (Raj.), Union of India vs. Hindustan Zinc Limited dated 22 nd May, 2006. He also submitted that order dated 22 nd May, 2006, referred above, has already been affirmed by Hon'ble Apex Court, while dismissing Special Leave Petition (Civil) No.CC 8147/2006 filed by Union of India. He submitted that a detailed judgment was given on the issue involved in the present matter in the case of Aditya Cement vs. Union of India reported in 2008 (221) E.L.T. 362, and D.B. Central Excise Appeal No.5/2005, Union of India vs. Aditya Cement decided on 8-11-2005, which has been followed in Union of India vs. Hindustan Zinc Limited (supra). He, therefore, submitted that present appeal filed by Union of India may be dismissed for the reasons, which have been assigned in the case of Union of India vs. Hindustan Zinc Limited(supra). Learned counsel for appellant is not in a position to controvert the above facts of learned counsel for respondent. He is also not in a position to distinguish the judgment delivered by this Court in Union of India vs. Hindustan Zinc Ltd. (supra) on facts or law.
(3.) WE have considered the submissions of learned counsel for the parties. We have also examined the impugned order passed by Appellate Tribunal and we find that issue involved in the present appeal has already been resolved by Division Bench of this Court in Union of India vs. Hindustan Zinc Limited(supra). The judgment dated 22nd May, 2006 delivered in Union of India vs. Hindustan Zinc Limited is reproduced, as under :- "The revenue through this appeal against the order of the Customs, Excise and Service Tax Appellate Tribunal requires this appeal to be admitted for deciding the following question as substantial question of law:- "Whether the learned Tribunal is right in law in allowing the Modvat credit on the item MS/SS plates in the maintenance and repair work of the machinery." 2. However, it is brought to our notice that like question about the admissibility of the Modvat credit on the various items used in workshop meant for repair and maintenance the machinery, which are used for manufacture of final product, considering them as capital goods in respect of which Modvat credit is available came for the consideration before this Court in D.B. Civil Central Excise Appeal No. 5/2005, The Union of India v. M/s. Aditya Cement and Anr. decided on 8-11-2005. 3. This Court concluded that goods once brought in factory for use in up-keep and maintenance of plant and machinery, which are directly used in manufacture of excisable articles, are the capital goods, and were certainly of subordinate necessity to such plant and machinery for the running of plant and is otherwise essential for its smooth and regular operations. Without proper up- keep and maintenance, the principal plant and machinery cannot function properly. Use of such capital goods is essential for smooth running of plant with greater efficiency. In other words, the goods in question are essential supplement to the plant and machinery for use in manufacturing goods, for its greater efficiency and better results and thus, it is an integral part of the process with which the primary machines are engaged. Looked from these aspects, there is no impediment for the goods in question qualifying as capital goods eligible for Modvat credit. 4. Consequently, such goods which are necessary for running of plant and up- keeping of the machinery directly involved in the manufacturing and products were held to be eligible to avail Modvat credit. 5. In view of the aforesaid decision of this Court rendered in D.B. Civil Central Excise Appeal No. 5/2005 we are of the opinion that for the purpose of reaching of same conclusion no substantial question of law need be raised again. Accordingly, the appeal fails and hereby dismissed". ;