9911796707
TMI Blog2012 (6) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... tions are in brief as under. 1. The appellants are engaged in the manufacture of various chemicals falling under Chapter Nos. 11, 15, 17, 28, 29, 34, 35, 38, 39, 81 etc. of CETA, 1985. They availed CENVAT credit in respect of inputs used in or in relation to the manufacture of final products. Some of the common inputs are Glass Bottles, Plastic Bottles, Plastic Carboys, printed cartons, self adhesive tapes and other packing materials. The allegation against the appellant company is that during the period of dispute i.e. from 01.04.2005 to 31.03.2006, they used common inputs viz. packing materials in or in relation to the manufacture of excisable goods as well as exempted goods without maintaining separate records and inventory of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Director and Directors of the appellant Company. Though these matters were listed for hearing of stay applications only, after hearing the same for sometime, we are of the view that the appeals could be finally disposed of and, accordingly, after granting waiver of the requirement of pre-deposit of duty demand, interest and penalties, the appeals themselves have been taken up for final disposal. 3. Ms. Charanya Lakshmikumaran, learned Advocate for the appellants, pleaded that in addition to the manufacture of various chemicals falling under different Chapter of CETA, 1985, the appellants were purchasing the duty paid chemicals from the market and those chemicals were being sold after repacking/relabelling as such, that in some cases t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been correctly imposed on the appellant company and the directors. 5. We have carefully considered the submissions from both the sides and perused the records. The demand under Rule 6(3)(b) against the appellant company is in respect of the goods which according to the department had been manufactured by the appellant company and are fully exempted. However, the appellants plea is that there was no manufacture of any excisable goods which were fully exempted from duty or on chargeable to nil rate of duty and some of the chemicals purchased from the market had been re-packed as such or after dilution by using cenvoted packing material and that the same does not amount to manufacture. However, we find that while this plea has been made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice tax is payable. (3) Notwithstanding anything contained in sub-rules (1) and (2), the manufacturer of goods or the provider of output service, opting not to maintain separate accounts, shall follow either of the following options, as applicable to him, namely :- (i) the manufacturer of goods shall pay an amount equal to ten per cent. of value of the exempted goods and the provider of output service shall pay an amount equal to eight per cent. of value of the exempted services; or (ii) the manufacturer of goods or the provider of output service shall pay an amount equivalent to the CENVAT credit attributable to inputs and input services used in, or in relation to, the manufacture of exempted goods or for provision of exem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Thus very basis of the impugned order that the provisions of Rule 6(2) and 6(3) would be applicable even if common inputs are used in the manufacture of dutiable goods as well as non-excisable goods is incorrect. Moreover, we find that absolutely no reasons have been given for rejecting the appellant's plea that there was no manufacturing activity in respect of the goods which according to the department are exempted goods and while according to the appellant is only a trading activity. In view of this, the impugned order is set aside and the matter is remanded to the original adjudicating authority for denovo adjudication keeping in view are above observations. The original adjudicating authority must give a clear finding as whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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