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TMI Blog2016 (5) TMI 835X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the credit was otherwise admissible as per unamended Rule 16 of Central Excise Rules, 2002. - Decided against the revenue - Appeal No. E/1431/2005 & E/CO-371/2005 - Order No. A/87616-87617/16/EB - Dated:- 28-1-2016 - SHRI RAMESH NAIR, MEMBER (JUDICIAL) AND SHRI RAJU, MEMBER (TECHNICAL) For the Petitioner : Shri Sanjay Hasija Supdt. (A.R.) For the Respondent : Shri R.V. Shetty, Advocate ORDER PER : RAMESH NAIR The appeal of the Revenue is directed against Order-in-Appeal No. AT/RGD/35/2005 dt. 31.01.2005 passed by the Commissioner of Central Excise (Appeals) Mumbai-III, whereby Ld. Commissioner (Appeals) set aside the Order-in-Original and allowed the appeal filed by the appellant. 2. The fact of the case is that the respondent is engaged in the manufacture of Copper Coating CO2 Mig Welding Wire of Steel out of the duty paid alloy steel wire rods. The process involved is the steel wire rod falling under Chapter 7227.90 and 7228.30 is drawn in steel wire. Then this redrawn wire is further copper coated and wound in spools and sold as Copper Coated CO2 Mig Welding Wir, which is normally used as welding electrode in wire form. The respondent availed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He placed reliance on the following judgments: (i) Collector of Central Excise Vs. Technoweld Industries-2003 (155) E.L.T. 209 (S.C.) (ii) Collector of C. Ex., Bombay Vs. Special Steel Ltd.-1996 (88) E.L.T. 707 (Tribunal) (iii) Commissioner of Central Excise, Mumbai Vs. Advani Oerlikon Ltd.-2004 (163) E.L.T.171 (Tri.-Mumbai) (iv) Advani-Oerlikon Ltd. Another Vs.Union of India and Another-1981 (8) E..T. 432(Bom.) (v) Collector of C. Ex., Patna Vs. Usha Martin Industries Ltd.-1999 (018)E.L.T. 517 (Tribunal) (vi) Special Steel Ltd. Vs. Collector of Central Excise, Bombay-1992 (38) E.C.R. 152 (Cegat SB-BI) (vii) Union of India Vs. HUF - 1978 E.L.T. (J 389) (viii) Bothra Metal Industries Vs. Collector of C.Ex. Vadodara-1998 (99) E.L.T. 120 (Tribunal) (ix) Tega India Ltd. Vs. Commr. of C. Ex., Calcutta-II-2004 (164) E.L.T. 390 (S.C.) (x) Commr. of C.Ex., Surat-II Vs. P.S.L. Corrosion Control Ltd.-2003 (151) E.L.T. 439(Tri.-Del.) (xi) Commr. of C. Ex., Belapur Vs. UPM Kymmene India Pvt. Ltd.-2015-TIOL-1172-CESTAT-MUM 4. On the other hand, Shri R.V. Shetty Ld. Counsel for the respondent submits that the process involved is not on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s any difficulty in following the provisions of sub-rule (1) and sub-rule (2), the assessee may receive the goods for being re-made, refined, re-conditioned or for any other reason and may remove the goods subsequently subject to such conditions as may be specified by the Commissioner. From the above rule, it is clear that the assesee is entitle to avail Cenvat credit on the duty paid goods even though the said duty paid goods does not undergo manufacturing process. The only condition is that if the duty paid goods is cleared after process which amounts to manufacture, the assesee is required to pay duty on the transaction value and if the goods are cleared without manufacturing process the duty which required to be paid is equal to the Cenvat credit availed. Rule 16 also holds the duty paid goods as inputs therefore the Cenvat credit is admissible. This issue has been settled in the following judgments: (i) Raajratna Metal Industries Ltd. Vs. Union of India 2013 (294) E.L.T. 192 (Guj.) held that- 13. In the background of the aforesaid facts as well as the submissions advanced by the learned advocates for the respective parties, it is apparent that the impugned ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contained in any judgment, decree or order of any court, tribunal or other authority, any action taken or anything done or purported to have been taken or done, at any time during the period commencing on and from the 29th day of May, 2003 and ending with the 8th day of July, 2004 under the rule as amended by sub-section (1), shall be deemed to be and always to have been, for all the purposes, as validly and effectively taken or done as if the amendment made by sub-section (1) had been in force at all material times. 16. The Schedule thereto indicates that Rule 16 of the Central Excise Rules has been amended by inserting the second proviso thereto, which reads thus : Provided that for the purposes of this rule, assessee shall include wire drawing unit, which has cleared the goods on payment of an amount equal to the duty at the rate applicable to drawn wire on the date of removal and on the value determined under relevant provisions of the Act and the rules made thereunder. Provided further that the amount paid under the first proviso shall be allowed as CENVAT credit as if it was duty paid by the assessee who removes the goods. 17. Thus, the persons like th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gislation and the circular dated 26-7-2006 issued by C.B.E. C. and we find that the demand confirmed by the Adjudicating Authority against Respondents in this case cannot survive in view of the said retrospective amendment. Therefore, the Appeal filed by Revenue is rejected. (iii) Commissioner Of C. Ex., Chandigarh Vs. Punjab Lighting Aids P. Ltd. 2012 (279) E.L.T. 143 (Tri. - Del.) held that- 7. In this case, wires had been received by the respondent during the period from August, 2003 to 8-7-04, i.e., during the period for which the 1st and 2nd provisos had been added to sub-rule (3) to Rule 16. Therefore, the amount paid by the manufacture-suppliers of wire on the clearance of wire has to be treated as duty and respondent who had received the wire would be eligible for its Cenvat credit. The only aspect which has to be checked in as to whether the wire manufacturers had obtained refund of the duty paid by them on the wire and in case they have taken the refund, the respondent would not be eligible for Cenvat credit. For this purpose, the matter has to be remanded to the original adjudicating authority. 8. In view of the above, discussion, the impugned order is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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