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TMI Blog2013 (11) TMI 1293X X X X Extracts X X X X X X X X Extracts X X X X ..... ma facie case in their favour. Cenvat Credit on inputs used in the processes which do not amounts to manufacture - on the finished products the appellant have paid the duty - Even if the Department’s plea that processes undertaken by the appellant do not amount to manufacture, is accepted, this would have to be treated as a case of clearance of Cenvat Credit availed inputs as such which is permitted in the Cenvat Credit Rules - the appellant on these clearances have paid duty which is not less than the Cenvat Credit, availed - Prima facie, the Cenvat Credit demand would not be sustainable - the requirement of pre-deposit of Cenvat Credit demand and the amount demanded u/s 11D, interest thereon and penalty waived till the disposal – Stay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove Cenvat Credit demand was confirmed along with interest and penalty of Rs.2000/- was imposed. On appeal being filed to Commissioner (Appeals), this order was upheld by the Commissioner(Appeals) vide order-in-appeal dt. 30.11.12 against which Appeal No. E/55954/2013-EX(SM) has been filed along with stay application. 1.2 The goods obtained by the various processes were being cleared by the appellant on payment of duty and the duty paid to the Government was being recovered from the customers. The Department was of the view that since no duty was payable on metal pipes tubes subjected to various processes, the amount recovered by the Appellant from their Customers as duty is recoverable from them under section 11D. On this basis, demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rang Wire Products (India) Pvt. Ltd., Vs. Commissioner of Central Excise, reported in 2004(174) ELT-333(Tri. Del.), Shree Krishna Industries Vs. Commissioner of Central Excise, reported in 2005(182) ELT- 369 (Tri. Del.) and Commissioner of Central Excise Vs. M. P. Telelinks Ltd., reported in 2004(178) ELT- 167(Tri. Del.). He pleaded that in view of the above submissions, the appellant have strong prima facie case in their favour and hence the requirement of pre-deposit may be waived for hearing of the appeal and recovery thereof may be waived till the disposal of the appeal. 4. Sh. Davinder Singh, learned Jt. CDR, opposed the stay application by reiterating the findings of the Commissioners (Appeal) in the impugned order and pleaded that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unts to manufacture, there is no dispute that on the finished products the appellant have paid the duty. Even if the Departments plea that processes undertaken by the appellant do not amount to manufacture, is accepted, this would have to be treated as a case of clearance of Cenvat Credit availed inputs as such which is permitted in the Cenvat Credit Rules and since the appellant on these clearances have paid duty which is not less than the Cenvat Credit, availed, the Cenvat Credit demand, prima facie, would not be sustainable. Thus the appellant have strong prima facie case in their favour on this point also. 7. In view of the above discussion, the requirement of pre-deposit of Cenvat Credit demand and the amount demanded under section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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