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TMI Blog2015 (11) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of Section 4 and as per explanation given in the said rule, duty so paid, that means in case of manufacture or non manufacturing activity, the recipient is entitle for availing the Cenvat credit on such duty. In view of the said provisions, it is absolutely clear that even if the activity of supply is not amount to manufacture but he has paid the said duty is available as Cenvat credit to the appellant. In view of my above discussion, I am of the view that the appellant is legally entitle for Cenvat credit in respect of laminated film received by them for packaging purpose. Therefore impugned order is set aside - Decided in favour of assessee. - APPEAL NO. E/89617/13 & Application No. E/STAY/99503/13 - Final Order No. A/2635/2015- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n demand of Cenvat credit availed on invoices of M/s. Packotech Industries were confirmed. Being aggrieved, the appellant filed appeal before the Commissioner(Appeals), who rejected the appeal of the appellant therefore appellant is before me. 3. Shri. N.M. Porwal, Ld. Consultant for the appellant submits that they received the laminated film under cover of duty paying invoices and excise duty was admittedly pad on such inputs. He submits that on their part whether activity of the manufacturer or supplier is amount to manufacture or otherwise cannot be disputed. The appellant is recipient of the goods and for the purpose of taking credit only requirement is the input should be duty paid, it should be covered by duty paying documents and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recipient of the input. He further submits that as regard whether an activity lamination is manufacture or other wise in the case of Paper Products Ltd. Vs. Commissioner of Central Excise, Mumbai-III[2014(304) ELT 145(Tri. Mum)] division bench of this Tribunal held that laminating material use for packaging purpose can be considered as manufacture as per Section 2F OF Central Excise Act. He also submits that the similar case was made against similar place assessee who have purchase the same input from the supplier M/s. Packotech Industries. He submitted that order in appeal dated 28/1/2014 wherein Ld. Commissioner(Appeals) rejected the departments appeal by allowing credit in respect of the same input i.e. plastic laminated film. Similarly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order. He further submits that Cenvat credit is allowed only in respect of duty paid on the inputs. He submits that as regard the laminating process activity was not amount to manufacture and same has become manufacture only after 1/3/2008 by virtue of insertion of Chapter Note No. 16 in chapter 39 of the Central Excise Tariff Act. Therefore prior to this lamination of film was not amount to manufacture and therefore no duty was required to be paid. Duty was paid by the manufacture is not duty as good was not excisable therefore since credit is allowed only in respect of duty but in the present case payment made by the supplier is not duty therefore appellant cannot be allowed Cenvat credit of such amount paid by the supplier. 5. I have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even though there is dispute of manufacture at the supplier end no fault can be found in availment of Cenvat credit by the recipient of the input. Therefore even if it is presumed that activity of the supplier in respect to input supplied is not of manufacture even then Cenvat credit cannot be denied to the appellant. In this regard I have gone through provisions of Rule 16 of Central Excise Rules, 2002 which is reproduced below:- RULE 16. Credit of duty on goods brought to the factory. (1) Where any goods on which duty had been paid at the time of removal thereof are brought to any factory for being re-made, refined, re-conditioned or for any other reason, the assessee shall state the particulars of such receipt in his records and sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty i.e. in case of non-manufacture of activity, equal amount of Cenvat credit to be paid and in case of manufacture duty, transaction value to be paid in terms of Section 4 and as per explanation given in the said rule, duty so paid, that means in case of manufacture or non manufacturing activity, the recipient is entitle for availing the Cenvat credit on such duty. In view of the said provisions, it is absolutely clear that even if the activity of supply is not amount to manufacture but he has paid the said duty is available as Cenvat credit to the appellant. In view of my above discussion, I am of the view that the appellant is legally entitle for Cenvat credit in respect of laminated film received by them for packaging purpose. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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