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TMI Blog2013 (8) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... aced by Rule 4 (6) in the new Rules – Reliance is placed upon the decision in the case of Eveready Industries Ltd. Vs. CCE - 2004 (8) TMI 302 - CESTAT, BANGALORE ] and Tega India Ltd Vs. CCE – [ 1999 (6) TMI 109 - CEGAT, CALCUTTA].- Decided in favor of Assessee. - E/415/2012 - 400212013 - Dated:- 1-2-2013 - Shri Mathew John, JJ. For the Appellant : Shri N Rajagopalan, Special Counsel For the Respondent : Shri Vipin Jain, Advocate In this proceeding an appeal filed by Revenue is being considered along with a cross-objection filed by the respondent. 2. The respondent has one factory at Tuticorin and other factories at Silvassa , Chinchpada and Pipara falling under the jurisdiction of Central Excise Commissioner, Vapi . Respondent manufactures copper anode, copper cathode and continuous copper wire at their Tuticorin factory. They sought permission from the Deputy Commissioner of Central Excise, Tuticorin Division vide letter dated 12-03-2012 for removal of copper anode to their units at Silvassa , Chinchpada and Pipara under Rule 4 (6) of Cenvat Credit Rules, 2004 for converting it to cathodes or copper wire. The Deputy Commissioner refused the permission for the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his rule reads as under: "(6) The Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, having jurisdiction over the factory of the manufacturer of the final products who has sent the input or partially processed inputs outside his factory to a job-worker may, by an order, which shall be valid for a financial year, in respect of removal of such input or partially processed input, and subject to such conditions as he may impose in the interest of revenue including the manner in which duty, if leviable , is to be paid, allow final products to be cleared from the premises of the job-worker." 8. Thus his contentions are basically two fold. Firstly that copper anode is a dutiable final product. He submits that respondents themselves claimed copper anode to be their final product. For this he pointed out para 83 of the cross objection filed by the respondent. Further he relies on the decision of this Tribunal Vide Final Order No. 353-376/2004 dt . 12-4-2004 reported at 2005(191) ELT 401. It is decided, in this case, that the role of copper concentrate as input ends in the smelter after giving finished product namely copper anode ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their Commissionerate. According to him, such an approach has resulted in the genesis of the problem at hand, though actually there is no Revenue loss to the exchequer because the duty if paid at Tuticorin would have resulted in lesser collections for the same amount at Vapi . 14. He pointed out that the respondents had taken up this issue with CBEC and CBEC had clarified vide letter F. No. 267/63/2002-Cx-8 dated 27-02-2003 as under: "Subject: Permission under Rule 4(6) of CENVAT Credit Rules, 2002 - request by M/s. Sterlite Industries India Ltd., Tuticorin - regarding. Sir, I am directed to refer to your letter C. No. IV/16/272002/T-2 dated 14.2.2003 on the representation made by M/s. Sterlite Industries India Ltd. seeking permission under Rule 4(6) of CENVAT Credit Rules, 2002. It is observed that in case the request for amendment in Registration Certificate to include Copper Cathode as final product of Tuticorin unit is acceded to, Copper Anodes which are sought to be cleared from Tuticorin unit become eligible to be cleared directly from the premises of the job worker at Silvassa after necessary job-work. Further, Rule 4(6) states that the Commissioner having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmits that though there are very many decisions in the context of Rule 57 F (4), he is not able to point out any decision in the context of Rule 4 (6). But he argues that there is no reason why these decisions will not apply to rule 4 (6) because the issue in dispute is essentially same. 18. The Counsel also draws attention to the definition of job-worker as given at rule 2 (n) of Cenvat Credit Rules, 2002 as under: (n) "job work" means processing or working upon of raw material or semi-finished goods supplied to the job worker, so as to complete a part or whole of the process resulting in the manufacture or finishing of an article or any operation which is essential for aforesaid process and the expression "job worker" shall be construed accordingly; He argues that no part of this definition can be interpreted to mean that the expression "job-worker will not cover another factory of the same manufacturer to which goods are sent for doing certain processes. 19. I have considered arguments on both Sides. 20. I am in agreement with the argument of the Respondent that anode is both final product as well as intermediate product at their factory at Tuticorin . It is fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y from Rs. 6 lakhs imposed by adjudicating authority to Rs. 1 lakh . This reduction in penalty was also not interfered with. It is wrong to hold that discretion exercised by quasi-judicial authorities should not be scrutinized in appeal proceedings to see whether it is exercise as per provisions of law and whether the power was exercised judiciously. Both proposition can only lead to arbitrary abuse of power. One sentence from an order cannot be interpreted to mean judicial axiom. 23. In the matter of prayer in the cross objection that the Commissioner (Appeal) should have extended the facility himself rather than directing the lower authority to do so, I do not see much substance because it is only a matter of semantics. The order of the adjudicating authority is set aside and direction is given to grant the facility and there is no reason why it should be refused. If such facility is not yet allowed, the prayer should be for implementation of the order no such prayer was made during hearing. 24. In the matter of para 19 of the impugned order contested by the Respondent in their cross objection, I do not see any merit. As per Rule 6 (4), the permission is to be renewed each fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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