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TMI Blog1997 (10) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... ee such machineries which had been installed in its factory for about 25 years for renovation and reconditioning. Shamvik carried out the renovation or reconditioning using, in the course of such renovation or reconditioning component parts manufactured in its factory. It cleared the machines after paying duty at 15% on the component parts used and 10% on what is described as the apportioned cost of the machines. The duty so paid amounted to Rs. 47.46 lacs (approximately). On receipt and installation of these machines from Shamvik, the appellant took credit of the duty paid in terms of sub-rule (1) of Rule 57T. Subsequently the Assistant Commissioner issued a notice to the appellant on the ground that the credit taken was inadmissible and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Commissioner, Pune decide upon the entitlement to credit. He has no jurisdiction to sit in judgment on the assessment made by the Assistant Commissioner at Mumbai. 4. The Departmental Representative contends that the goods were received, and Modvat credit taken, in the territorial jurisdiction of the Commissioner of Central Excise, Pune. That Officer therefore has jurisdiction to decide on the eligibility of credit to be taken, and thus was within his rights in saying that credit was wrongly taken. He further contends that the machines were 25 years old and duty would have been paid on them much before 1st March, 1994. The goods had also been received in the appellant s factory before 16 March, 1995. Therefore, application of Rule 57Q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , paid by a contractor or job worker who undertakes the job of initial setting up, renovation, modernisation or expansion of the plant on behalf of the manufacturer of final products, subject to such procedure and conditions as the Commissioner of Central Excise or Central Board of Excise and Customs may prescribe." It is evident that the notice has overlooked the fact that the proviso also applied in cases of renovation, modernisation or expansion of the plant. The contention that the proviso would not apply in case of renovation and would only apply in the cases of initial setting up of the plant is therefore erroneous. The Commissioner s order could not go beyond the allegations in the notice. On this basis alone the order would have t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the Superintendent approved the RT-12 memorandum with regard to the assessment on the duty he signified his acceptance of this view, that the processes undertaken amounted to manufacture and that duty had been correctly paid. 7. If the processes undertaken by Shamvik amounted to manufacture it could not be said that the machines which were originally received by the appellant continued to retain their identity. The same machine cannot be manufactured twice over. It would be reasonable to conclude that in the process of renovation carried on these machines which was so extensive as to amount to manufacture; the identity of the machines on which such renovation was undertaken was lost. If this view is correct, it would answer the point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the goods could be consigned, not to the manufacturer of excisable goods, but to the job worker or contractor and an objection could legitimately be raised that these documents did not constitute the documents specified, or provided for, in sub-rule (3). The appellant has itself erroneously invoked the provisions of sub-rule (3). Shamvik was neither a job worker nor a contractor, nor did it undertake the initial setting up, renovation, modernisation or expansion of the plant on behalf of the appellant. It carried out renovation of machinery which formed part of the plant. The relationship between the appellant and Shamvik was not that of contractor or job worker and the employee of a contractor or job worker, but on principal to principa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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