9911796707
TMI Blog2006 (10) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... - against the Government dues, and has prayed that the said amount of refund should be made in cash and not by credit in Cenvat account as ordered by the adjudicating authority. 2.By the order-in-original, dated 6-1-2000, a demand of Rs. 1,50,199/-was confirmed against the appellant and penalty imposed by the Joint Commissioner under the provisions of Central Excise Act and the Rules of 1944. By the appellate order, dated 13-3-2001, the Commissioner (Appeals) directed the appellant to deposit the duty of Rs. 1,50,199/- and equivalent amount of penalty imposed as a pre-condition for hearing the appeal. Thereafter, the appeal was rejected on 23-5-01 for non-compliance of provisions of Section 35F of the Act. The assessee, however, deposited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 2001 (132) E.L.T. 724 (Tri.), by ordering that the refund be made by allowing the credit in Cenvat credit account and restoring the position as existed earlier before the debit of the account. The Commissioner observed that, 'as per the provisions of Cenvat credit scheme, refund of credit in cash is allowed only under the specified circumstances and conditions'. It was held that Modvat credit rules do not contain any provision for the refund of Modvat credit in cash or by cheque, except in cases where the inputs are used in the manufacture of goods, which are exported out of India and, therefore, manufacturer was not in position to utilise the credit, which was not the case in the appeal before the Commissioner. 3.The learned Counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resentative for the department submitted that the Supreme Court, in the case of Rajasthan State Electricity Board v. Associated Stone Industries and Anr. - JT 2000 (6) S.C. 522, has held that cutting and polishing stone into slabs did not amount to any manufacture of goods. He submitted that, on the capital goods which were not used by the appellant in the manufacture of excisable goods, therefore, no Modvat credit could have been taken. However, since refund has been granted by reviving the Modvat credit in the relevant account and that order is not challenged by the revenue, the appellant can avail of that only against the removal of excisable goods. He submitted that it had not been shown by the appellant that it was not in a position to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account after it was debited. It appears that even before the decision of the Supreme Court in Aman Marbles (supra), Hon'ble the Supreme Court had already decided, in the case of Rajasthan State Electricity Board (supra), that cutting and polishing stone into slabs was not a process of manufacture, and that view was reiterated in the case of Aman Marbles (supra). 6.If the appellant was not manufacturing any excisable goods, he was not entitled to take Modvat credit on the capital goods, purchased for manufacturing the non-excisable goods. However, since the order allowing refund by reviving the Modvat credit has already been passed by the revenue, that aspect is of no consequence in this matter. It may, however, be noticed that, in cases ..... X X X X Extracts X X X X X X X X Extracts X X X X
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