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TMI Blog2015 (12) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt of Bombay in the case of Ajinkya Enterprises (supra) stated that the issue is no more res integra. - Impugned order is set aside - Decided in favour of assessee. - E/1708/12, E/85634/13, E/1932/12, E/1933/12, E/89124/13, E/89124/13 - Final Order Nos. A/3760-3765/2015-WZB/EB - Dated:- 2-12-2015 - Mr. M.V. Ravindran, Member (Judicial) And Mr. C.J. Mathew, Member (Technical) For the Petitioner : Shri J.H. Motwani, Advocate with Ms. Nehal Parekh, Advocate For the Respondent : Shri Hitesh Shah, Commr (AR) ORDER Per: M.V. Ravindran All these appeals are disposed of by a common order as they raise the same question of law and facts and are in respect of the very same assessee. 2. The relevant facts that arise for consideration are the assessee herein are manufacturer of various products like G.P.Coils, G.P. Sheets, G.C. Sheets, C.R. Sheets, C.R.Coils, and H.R.Pickled and Oiled Coils falling under Chapter No.72 of Central Excise Tariff Act, 1985 (CETA). The assessee cleared the final products H.R. Oiled Coils and Pickled Coils (final products). The final products herein referred above are manufactured for home consumption, for export and cleared on paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f H.R. Coils is done and are used for specific applications which requires to clean uniform surface and good flatness for forming, painting or plating and for such activity without carrying out the entire manufacturing process of pickling oiling, H.R. Coils cannot be used. It is his further submission that in terms of Section 2(f) of the Central Excise Act, 1944, the process carried by them amounted to manufacture and hence they were discharging appropriate Central Excise duty on the product. He would also refer to the publication Practical Metallurgy and Materials of Industry , 2nd Edition by John E. Neely, to submit that the process of pickling is expansive and requires a lot of labour and changes the nature of article which falls under the definition of manufacture as envisaged in Section 2(f) of Central Excise Act, 1944. It is his further submission that the assessee having discharged the duty liability more than the CENVAT credit availed has in a way reversed the CENVAT credit which is sought to be demanded from them. It is his submission that the ratio which has been laid down by the Tribunal in the case of Ajinkya Enterprises - 2013 (288) ELT 247 (Tri. Mum), which was tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1944. It is his further submission that there is no activity of manufacturing that take place on the products. It is in the laymans language nothing but cleaning of the inputs received by the assessee. If the inputs do not undergo the manufacturing activity, CENVAT credit availed by the assessee is liable to be reversed and to be held as ineligible is the law which has been settled by various decisions. It is also his submission that the Apex Court has held cutting and slitting of H.R. Coils does not amount to manufacture though it is his submission that earlier the CBEC has stated that the activity of cutting and slitting would amount to manufacture. It is his submission that once the Apex Court has laid down the law that cutting and slitting would not amount to manufacture, it is incumbent upon the assessee not to avail CENVAT credit as the CENVAT credit on inputs can be availed when the products are manufactured. It is his further submission that the Hon ble High Court of Bombay in the case of Mahindra and Mahindra Ltd. - 2015 (321) ELT 51 (Bom.) has held that when there is an exemption and that too unconditional, assessee cannot insist upon payment of duty on exempted goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y them or not. 7.1 Various submissions were made before us by both the sides as to whether the activity of pickling and oiling of H.R. Coils amounts to manufacture or otherwise. In our considered view, instead of going into the issue on this point the matter in hand can be resolved only on the point, as to whether the assessee has discharged the duty liability which is more than the CENVAT credit availed on the inputs or not. It is on record and undisputed that during the period post 24.06.2010, assessee had cleared the products as manufactured products on payment of appropriate duty, which was more than the CENVAT credit availed by them on the inputs which were used. The ratio of the Honble High Court s judgement in the case of Ajinkya Enterprises (supra) would be applicable in the case in hand as in that case also the issue was regarding oiling and pickling, cutting and slitting of H.R./C.R. Coils is the same. Respectfully we reproduce the ratio which is in Para No.9 and 10. 9. We have seen from the facts of this case where as per Circular dated 7-9-2001, the activity of slitting of HR/CR coils into strip was amounted to manufacture. It is admitted fact that the said Cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) (wherein one of us, M.V. Ravindran was a Member) following the judgement of the Hon ble High Court in the case of Ajinkya Enterprises (supra) held that once the assessee considered the activity as amounting to manufacture and discharges the duty liability, the question of availing CENVAT credit cannot be disputed holding that there is no manufacture. The said ratio has also been upheld by the Apex Court in the case of Creative Enterprises. In the case of Creative Enterprises, the Hon ble High Court of Gujarat, as reported in 2009 (235) ELT 785 (Guj) has held that having discharged the duty liability, availing of CENVAT credit cannot be questioned. Revenue aggrieved by such judgement of the High Court, filed a SLP before the Apex Court and the Apex Court dismissed the same as reported in 2009 (243) ELT A120 (SC). 7.3 We find that the principal Bench of this Tribunal in the case of R.B Steel Services (supra) were also considering an identical issue in respect of process of conversion of black bars/rods into bright bars and availment of CENVAT credit on the inputs. The Tribunal after considering the issue and the case law, relied upon the judgement of the Hon ble High Court of Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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