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TMI Blog2012 (7) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... .2009 passed by the Commissioner (Adjudication) whereby he disallowed the cenvat credit availed by the appellant and confirmed duty demand of Rs.1,48,43,003/- in respect of period July, 2007 to February, 2008, with interest and also imposed penalty of Rs. 7,50,000/- on the appellant. iii) In Excise Appeal No. 3059 of 2009, the appellant M/s Sheetal Merantile (P) Ltd. have challenged the impugned order No.4/2009 dated 29.9.2009 whereby the Commissioner (Adjudication) disallowed the cenvat credit availed by the appellant during the period June 2007 to February, 2008 and confirmed the duty demand of Rs. 67,96,891/- with interest and also imposed penalty of Rs.3,40,000/- on the appellant. iv) In Excise Appeal No. 3036 of 2009, the appellant M/s Jaiswal Products has challenged the impugned order No. 5/2009 dated 29.09.2009 whereby the Commissioner (Adjudication) disallowed the cenvat credit availed by the said appellant during July 2007 to February, 2008 and confirmed the duty demand of Rs.53,66,066/- with interest and also imposed penalty of Rs. 2,68,000/- on the appellant. 2. Briefly stated facts relevant for the disposal of these appellants are that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acture of the final product. 8. The concerned adjudicating authorities after giving opportunity of being heard to the said three appellants took the view that since the final products of respective appellants were brought out by a process not amounting to manufacture the appellants were not eligible for availing cenvat credit on the inputs used as such the cenvat credit availed by them was disallowed and the respective demands were confirmed with interest and penalties were imposed on them. 9. The appellant M/s Jaiswal Products is engaged in manufacture of chewing tobacco falling within the first schedule of Central Excise Tariff Act, 1985. This appellant took cenvat credit to the tune of Rs. 53,66,066/- during July 2007 to February 2008 in respect of duty paid on the inputs namely printed laminated polyester film, rolls/ pouches and utilsied the credit for payment of duty on their final product namely chewing tobacco. The said inputs were purchased from the appellant M/s Chawla Packaging (P) Ltd., M/s Sheetal Mercantile (P) Ltd., under the cover of invoices showing the payment of duty. 10. The department was of the view that the inputs supplied to M/s Jaisw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead cogent evidence, as such it cannot be applied universally to all the cases de hors the facts involved. 14. Ld. Counsel further contended that the Commissioner (Appeals) has failed to take note of the various other pronouncement of the Supreme Court in the case of Laminated Packings (P) Ltd. vs. CCE- 1990 (49) ELT 326 (SC), wherein Supreme court held that polyethylene laminated kraft paper produced from lamination on duty paid kraft paper amount to manufacture. The appellant have also relied upon judgement of Supreme Court in the matter of Empire Industries Ltd. vs. Union of India 1985 (20) ELT 179 (SC) and CCE, Kanpur, CCE, Kanpur vs. Krishna Carbon Paper Co. 1988 (37) ELT 480 (SC). Thus, it is contended that the impugned order is liable to be set aside. 15. As regards issue No. 2, Shri S.S.Dabas, ld. Advocate has submitted that as per the scheme of Excise Act and Cenvat Credit Rules, 2004 an assessee is entitled to avail cenvat credit in respect of inputs used for manufacture of the final product which is excisable. Ld. Counsel submits that in the instant case admittedly the appellant manufacturers cleared their final product to the customers on payment of exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ook on the relevant observations of the Supreme Court in the judgement which are reproduced thus:- 15. In this case the Appellants purchase duty paid film. They merely laminate or metallise it. The product is a film to start with and remains a film after process of lamination or metallisation. Thus there is no new distinct product which has come into existence and it would have to be concluded that there is no manufacture. 16. It was however submitted that the case has proceeded on the admitted footing that there was a manufacture. It was submitted that the matter must be remitted back to decide whether there is manufacture. It was submitted that this aspect will have to be decided in terms of Note 12 to Chapter 39 and after looking at the process adopted by the Appellants. It was submitted that under the present Tariff there are separate sub-heading and thus after examining the process of the Appellants it may be possible to contend that a new and distinct product has come into existence. 17. We are unable to accept this submission. The question is whether an individual and distinct product has come into existence. It is settled law that the burden is on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her chemical. 21. This fact is not refuted by the department. Thus, it is clear that the appellant after purchasing the bare polyester/ metalised film on payment of duty, first subject those film to printing as per the requirement of the customer and thereafter those films are laminated either in two layers or three layers. In our considered view the aforesaid process changes the character of the bare polyester film (inputs) in terms of its user as also the thickness and lamination. Therefore, this process falls within the definition of manufacture as defined under Section 2(f) of the Central Excise Act, 1944. In our aforesaid view we are supported by the judgement of the Supreme Court in the matter of Laminated Packaging (P) Ltd. (supra) wherein the Supreme Court has held that polyethylene laminated kraft paper produced out of lamination on duty paid kraft paper with polyethylene amounts to manufacture. The relevant observation of Supreme Court are reproduced thus:- 4. After this impugned Act was passed, the same was challenged before the Bombay High Court by several writ petitions. Writ Petition No. 623 of 1979 along with others were disposed of by the Bombay High Court bu judg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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