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TMI Blog2014 (12) TMI 318X X X X Extracts X X X X X X X X Extracts X X X X ..... 2014 - Dated:- 27-8-2014 - SHRI B.S.V.MURTHY AND SHRI S.K. MOHANTY, JJ. For the Appellant : Shri Ramesh Ananthan Adv For the Respondent : Shri N. Jagdish, Superintendent(AR) ORDER Per : B.S.V.MURTHY; The fact of the case is that the assessee is clearing industrial locks, hingers and gaskets falling under Chapter 83 and 40 of the CETA, 1985. The department contends that the process undertaken by the assessee is only trading in respect of hinges and cutting of gaskets from bigger rolls to the rolls of smaller and required size; in respect of hinges there is no activity undertaken but the same are cleared as such by the assessee without any change in classification and thus appeared to be trading activity. Further gas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LT 392 (Tri. Mumbai)] wherein such a view was taken. 4. Learned AR relied upon the decision of Honble Supreme Court in the case of KCP Ltd. Vs. CCE, Chennai [2013(295) ELT 353 (SC)]. This is related to export of goods and therefore on going through the decision, we find this decision cannot be applied to the present case. Learned AR also relied upon the decision of Hon ble Gujarat High Court in the case of CCE, Ahmedabad-II Vs. Inductotherm (I) Pvt. Ltd. [2012-TIOL-929-HC-AHM-CX]. He relied upon paragraphs 16 17 to submit that if there is no manufacture, no credit can be taken. In our opinion, these observations came out because Hon ble High Court s observation in paragraph 15 which is also to be considered. Paragraphs 15 to 17 of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lected any charge from the ultimate purchaser in form of excise duty. The question of adjusting Cenvat credit for depositing such amount so collected did not arise. 17. We may recall that Rule 3(4) of the Rules, 2004 provides for cases where Cenvat Credit can be utilized for payment of duties. None of the clauses (a) to (e) thereof would cover a situation where the amount has been collected from the purchaser under the title of excise duty which can never be categorized as such since no manufacturing activity was carried out by the respondent. Utilization of Cenvat credit for such purpose, therefore, was wholly impermissible. The decisions of the Apex Court cited before us and that of the Rajasthan High Court, at best may suggest that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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