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TMI Blog2015 (11) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... denied nor demand under Rule 57 CC can be made. - impugned order is set aside - Decided in favour of assessee. - APPEAL NO. E/811/10 - - - Dated:- 4-6-2015 - Mr. Ramesh Nair, Member (Judicial) For the Petitioner : Shri. N. S. Patel, Advocate For the Respondent : Shri. Ashutosh Nath, Asstt. Commissioner(A.R.) ORDER Per : Ramesh Nair This appeal is directed against Order-in- Appeal No. SB/23/Th-I/10 dtd. 10/2/2010 passed by the Commissioner (Appeals) Central Excise, Mumbai Zone-I wherein Ld. Commissioner(Appeals) upheld the Order-in-Original No. DP/Refund-1/08-09 dated29/7/2008 and rejected the appeal of the appellant. 2. The fact of the present case is that the appellant are manufacturer of excisable goods namely Auxiliaries and Chemicals falling under chapter 29,34,38 of the schedule to the Central Excise Tariff Act, 1985. The appellant filed refund claim of ₹ 1,52,410/- with the office on 17/7/1997. The appellant had paid Central Excise duty of ₹ 1,52,410/- under rule 57 CC of Central Excise Rules 1944 @ 8% of value of goods cleared at NIL rate of the duty on which job work was carried out under Rule 57(3). The appellant in their own clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l before the Commissioner(Appeals) who vide impugned order upheld order in-original dated 29/7/2008 and rejected the appeal of the appellant therefore the appellant is before me. 3. Shri. N.S. Patel, Ld. Counsel for the appellant submits that the appellant have used their own inputs in the manufacture of job work goods on behalf of the principal in terms of erstwhile Rule 57(F3) of Central Excise Rules 1995. Job work goods were cleared under Notification No. 214/86CE dated 25/3/1986. Though the job work goods is exempted from payment of duty at job workers(Appellant) but in terms of Notification 214/86CE principal is discharging the excise duty on the final product where either the job work goods is used as intermediate goods or job work goods were cleared as such on payment of duty. Therefore in this particular case, the Rule 57 CC and payment of 8% therein is not applicable. He submits that appellants case is squarely covered by the judgment of this Tribunal in the case of Max India Ltd(Supra) . The Ld. Commissioner(appeals) has wrongly applied the ratio of judgments in the case of CCE Vs. Nicholas Piramal (I) Ltd [2009(244) ELT 321(BOM.)] and erred in holding that Max India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said judgment was not applicable and Commissioner has wrongly applied the same. In case of Max India Ltd this Tribunal has held as under: 6. The appellants are manufacturing metallised films? and clearing the same on payment of duty and also undertaking the job-work of metallising films on the films supplied by the principal manufacturer and after metallising the same were cleared without payment of duty to the principal manufacturer. The principal manufacturer further used these films in the manufacture of pouches which were cleared on payment of duty. Notification No. 214/86-C.E. provides the exemption from payment of Central Excise duty on the goods manufactured in a factory as a job-work which are further used in the manufacture of final products on which duty of excise is leviable. The appellants are working under this Notification regarding which the necessary declaration is filed by the principal manufacturer. The Revenue confirmed the demand on the ground that the appellants were clearing the goods without payment of duty on which credit has been taken under Rule 6(3)(b) of the Cenvat Credit Rules. This Rule provides that the manufacturer is liable to pay amount equa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ? reversed the credit taken on the inputs, which were used in the manufacture of the goods which were cleared after job-work under notification, therefore, no further demand can be raised by 8% as provided under Rule. In the case of Jalpack India Ltd.(supra), the Tribunal set aside the demand raised on the similar ground where the credit taken by the appellants on the inputs used in the manufacture of exempted job work goods were reversed at the time of clearance. In view of the decision of the Tribunal, the Revenue is not disputing the fact that the intermediate products manufactured by the appellants are further used in the manufacture of pouches, which were cleared without payment of duty. Therefore, the demand is not sustainable and is set aside. The appeal is allowed.. There are other various judgments wherein similar issues has been decided in favour of the assesseee some of the judgment and relevant paras are extracted below: 2003 (161) E.L.T. 880 (Tri. Mumbai) INDIAN SMELTING REFINING CO. LTD. Versus COMMISSIONER OF CENTRAL EXCISE, MUMBAI 2.Counsel for the appellant relies upon the decision? of this Tribunal in Ballarpur Industries v. CCE - 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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