2007 (3) TMI 156 - AT - Central Excise

Cenvat/Modvat - Alleged that appellant is not entitle for credit on the ground that no manufacturing activity took place in their premises during the period of dispute - Held that allegation was not valid and allowed appeal of appellant

Summary

Issues:
Denial of Cenvat credit due to alleged lack of manufacturing activity during the disputed period.

Analysis:
The case involved the denial of Cenvat credit amounting to Rs. 63,609/- on the grounds of no manufacturing activity taking place in the appellant's premises during the disputed period. The appellant argued that although they had obtained a Registration Certificate, the manufacturing activity was carried out at the premises of their job worker by supplying raw materials. They contended that after manufacturing the finished product, they received it back and cleared it on payment of duty. The appellant relied on the case of Kay Cee Electricals v. CCE, New Delhi and Bata India Ltd. v. CCE, Bangalore-II to support their argument that they should be considered as the manufacturer. In the Kay Cee Electricals case, it was held that the job worker cannot be treated as the manufacturer if the supplier undertakes to discharge the duty on the finished product. Similarly, in the Bata India Ltd. case, the appellant got their goods manufactured through a job worker due to labor problems and cleared the final goods after obtaining permission.

The Department's representative tried to distinguish the case by pointing out that the appellant did not give an undertaking to discharge the duty as in the Kay Cee Electricals case and did not obtain permission to clear the goods from the job worker's premises as in the Bata India Ltd. case. However, the appellant's counsel argued that the payment of duty by both the appellant and the job worker was not disputed, making the lack of an undertaking irrelevant. They also emphasized that the goods were cleared from the appellant's premises, not the job worker's, and that there was no finding to the contrary. The counsel contended that the denial of credit was solely based on the lack of manufacturing facility, which was addressed by the decisions in favor of the appellant cited earlier.

Ultimately, the Tribunal set aside the denial of credit in favor of the main appellant and also set aside the penalty imposed on the 2nd and 3rd appellants since the denial of credit was overturned. Cenvat credit was permitted to the 1st appellant, and all the appeals were allowed.