V.P. Gulati, Member (T)

1. These two appeals arise out of the common order of the Collector of Central Excise (Appeals), Madras. The assessees viz. Shimoga Steels Ltd. are aggrieved against the findings of the lower appellate authority holding that Tundish Boards, Sodium Silicate, Acetylene, Thermo Couple Tips and Refractory Cement are not eligible for the benefit of MODVAT Credit. The Revenue in the appeal is aggrieved against the benefit of MODVAT Credit allowed in respect of Graphite Nipples.

2. The learned Counsel for the appellant (Shimoga Steels) pleaded that in a number of decisions it has been held that MODVAT Credit is available in respect of Acetylene Gas. In this context he cited the case law reported in MANU/CM/0024/1989 : 1990 (48) E.L.T. 552 in the case of Mukund Iron and Steel Works Ltd. In respect of Thermo Couple Tips he pleaded that the Central Board of Excise and Customs have clarified on 17-7-1987 [1988 (33) E.L.T. (T.21]) that Pyrometer Tips is eligible for the benefit of MODVAT Credit. A later clarification has been issued in 1990 extending the same benefit in respect of Thermo Couple Tips also. He pleaded that in view of this, the benefit of MODVAT Credit should have been allowed in respect of Thermo Couple Tips. In regard to Tundish Board he pleaded that these are applied to the inner surface of the furnace and for the protection of refractory bricks. He pleaded that the matter should not be viewed from the point of view of whether these are consumables as such or not but with reference to the use of the item in a particular manufacturing process and he pleaded that it may appear that since Tundish Boards are applied as the inner linings of the furnace these are not consumables, but the fact remains that some of the elements contained therein get to mix in the melt in the furnace contributing to its properties. He, however, did not furnish any technical material in this regard. In regard to ramming mass, he pleaded that the same was also used for the protection of the refractory bricks. He pleaded that the matter stands covered against the appellant by the order of this Bench in the case of Sathya Steel Strips Pvt. Ltd. v. CCE, reported in MANU/CC/0034/1988 : 1988 (38) E.L.T. 485 and also the order of the West Regional Bench, Bombay reported in MANU/CM/0024/1989 : 1990 (48) E.L.T. 552. He pleaded that in view of what he has stated earlier, benefit of MODVAT Credit should be allowed in respect of ramming mass.

3. Shri J.P. Gregory, the learned SDR adopted the reasoning of the learned lower authority in respect of the above items. In regard to Graphite Nipples for which the lower authority has allowed MODVAT Credit, he has pleaded that its use is in the nature of an equipment or apparatus and, therefore, MODVAT Credit should not be allowed. The learned Counsel for the Respondent (Shimoga Steel) in this regard pleaded that Graphite Nipples get consumed along with electrodes and, therefore, MODVAT Credit should be allowed in respect of this item.

4. We observe that so far as Acetylene Gas is concerned this Bench of the Tribunal as also other Benches held that benefit of MODVAT Credit is available in respect of Acetylene Gas being a consumable item used in the manufacturing process and following the ratio of our earlier decisions and that of the West Regional Bench, in the case of Mukund Iron and Steel Works Ltd. v. CCE, reported in MANU/CM/0024/1989 : 1990 (48) E.L.T. 552, we allow the appellant's plea (Shimoga Steels Ltd.) for the benefit of MODVAT credit in this regard.

5. So far as Thermo Couple Tips (Pyrometer Tips) are concerned, the Central Board has allowed the benefit of MODVAT Credit in respect of Pyrometer Tips. The Collector (Appeals) has not gone into the fact as to how Thermo Couple Tips and Pyrometer Tips differ and also not given any finding whether Thermo Couple Tips get melted by one use. The appellant has also not produced any technical literature in this regard. We, therefore, hold that f