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TMI Blog2010 (8) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... s duty over and above the amount paid by them – Order upheld - E/808/2008 - A/407/2010-WZB/C-IV/(SMB) - Dated:- 4-8-2010 - Shri Ashok Jindal, Member (J) REPRESENTED BY : Shri V.K. Singh, JDR, for the Appellant. Shri Aditya Chitale, Advocate, for the Respondent. [Order]. - Heard both sides. 2. Revenue has filed this appeal against the order of the Commissioner (Appeals) wherein the Commissioner (Appeals) uphold the Order-in-Original by rejecting the appeal filed by the Revenue. 3. The facts of the case are that the respondent are repairing electrical motors manufactured by them within warranty period free of charge as well as those manufactured by other manufacturers on labour-job basis. When ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f transformer and same has been cleared after payment of Central Excise duty. In this case they have received back the transformers manufactured and initially cleared by them on payment of duty and in some cases transformers manufactured by some other manufacturers from their customers, for the purpose of repairs. It is not the job work. During the course of repair of these transformers some defective parts are to be replaced with other repair work and where it is required initially replacement of certain part was done, the same does not amount to job work. On these parts the respondent has paid the duty and availed the credit. While these parts are cleared back to their duty customers as fitted in the transformer, the only duty portion was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 96 (81) E.L.T. 3 (S.C.) and cannot be found fault with. Another way in which this payment can be seen is that it is akin to the removal of inputs in terms of Rule 57F (1) (ii)/Rule 3(4) of Cenvat Credit Rules. Either way, this duty payment cannot be questioned". It is not the case that the respondent has cleared the whole transformer on payment of duty but they have reversed the only portion of the input used in repair of the said transformers. As regards the applicability of Section 11D of the Act, it was again observed by the Jt. Commissioner that Section 11D speaks of "duties of excise collected from the buyers to be deposited with the Central Government" and provisions of Section 11D(1) specify that every person who is liable to pay d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 20-3-1997 was also rightly held to inapplicable as there was no manufacture. Accordingly, the impugned order has to be upheld". 6. The case law cited by the DR is not supporting the case of the department, in fact in that case also it is held that repair of old transformer does not amounts to manufacture. The Adjudicating Authority has also observed the same and passed the order. 7. Both the lower authorities have considered the issue. The view taken by both the authorities is correct in the facts and circumstances of the case. I do not find any reasons to interfere the same. 8. With these observations I do not find any merit in the appeal the same is rejected, impugned order is upheld. (Pronounced in court) - - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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