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TMI Blog2015 (8) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of production of Billets, liquid metal is moulded through caster. The Respondents in their Cross Objection No.E/Cross/82/2011 stated that the Billets are being manufactured with the help of automatic moulding machine i.e. Concast Machine. So, it is clearly evident from the records that the Concast Machine was installed for manufacturing of the Billets after 31.12.2005. So, the Respondents are not eligible to avail the benefit of the exemption notification. - we set aside the impugned order of both the authorities below - Decided in favour of Revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... rlier cases, the Revenue allowed the refund claim, there is no bar of filing of the appeal against the subsequent period. It is also submitted that there is no res judicata in the tax matter relied upon the decision of the Hon'ble Supreme Court in the case of C.K. Gangadharan Vs Commissioner of Income Tax Cochin - 2010 (228) ELT 497 (SC) and Commissioner of Central Excise Chandigarh Vs Doaba Steel Rolling Mills - 2011 (269) ELT 298 (SC). He submits that it is revealed from the order of the Commissioner (Appeals) that they have installed Concast Machine for the manufacture of the Billets after the cut of date i.e. 31.12.2005. 5. On the other hand, the learned Advocate on behalf of the Respondent submits that it is not a case of classification dispute. It is the case of eligibility of the benefit of exemption Notification No.39/2001-CE (supra) as amended. He strongly relied upon the Board's Circular F.No.110/21/2006-CX-3, dt.10.07.2008. It is submitted that in the present case, the Respondents increased the capacity of the production by installation of Concast Machine and to enhance the quality of the product. There is no evidence that the Respondents installed machinery for manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is to say, units which was set up on or after the date of publication of the notification in the Official Gazette, but not later than 31.12.2005. 7. Hon'ble Gujarat High Court in the case of M/s Saurashtra Ferrous Pvt. Ltd (supra) held that the benefit of the said notification are not available to the petitioner with respect to the production of Pig Iron as plant/unit and machinery for its production had not been commissioned/fully installed prior to 31.12.2005. In that case, the petitioner set up a plant and machinery/unit of the factory for two different products i.e. cast iron articles and pig iron articles. The commercial production of cast iron was done prior to 31.12.2005. But, the entire plant and machinery for production/manufacturing of Pig iron was not commissioned and installed prior to 31.12.2005. Hon'ble Court held that the petitioner is not eligible to the benefit of exemption Notification No.39/2001-CE (supra) as amended in respect of manufacturing of Pig iron. The relevant portions of the said decision are reproduced below:- "10. Considering the aforesaid decision and even the? original Scheme contained in Notification No. 39/2001, dated 31-7-2001, and the purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levant portion of the said certificate is reproduced below:- "2. The process involves the charge mix of raw material mainly sponge iron pig iron/C.I. scrap/M.S. Scrap into molten bath with constant power track. In case of production of Ingots the liquid metal is moulded manually to make ingot and for billet the liquid metal is moulded through caster. Basically Concast machine is installed for quality improvement and upgradation of Rolled products etc." 9. The Commissioner (Appeals) observed that the Concast Machine is used for automatic moulding purpose and it enhance the quality of the product. It has also observed that the Revenue has not produced any evidence that with the help of Concast Machine there is an increase in the installed capacity. It is also observed that the Billets and Ingots are classifiable as two different items in the Central Excise Tariff. But, the Ingots and the Billets are similar cast semi-finished products, manufactured by melting metal in a furnace and casting of melted metals in different kind of moulds. 10. We are unable to accept that the findings of the Commissioner (Appeals). The Hon'ble Supreme Court in the case of Mahavir Aluminum Ltd held that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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