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TMI Blog2017 (2) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... /17/EB - Dated:- 2-1-2017 - Shri Ramesh Nair, Member (Judicial) And Shri Raju, Member (Technical) Shri Gajendra Jain, Advocate for Appellant Shri Ajay Kumar Jt. Commissioner (A.R) Shri N.N. Prabhudesai, Supdt. (A.R.) for respondent Per : Raju This appeal has been filed by M/s. Agrofab Machineries and M/s. Mahindra Mahindra Ltd. M/s. Agrofab Machineries (AFM) are job worker of Mahindra Mahindra. M/s. Mahindra Mahindra are engaged inter alia in manufacture of tractors. On 9.7.2004 tractors were exempted from Central Excise duty. In the month of July 2004 and August 2004 M/s. Mahindra Mahindra took credit of inputs. The inputs were cleared to the job worker and received back from the job worker without payment of duty under job work scheme. While clearing the tractors the appellant paid 8% amount in terms of Rule 6(2) of the Cenvat Credit Rules. From 1.9.2004 onwards till May 2005, M/s. Mahindra Mahindra stopped taking credit of inputs. They cleared the goods to the job worker and received the same back without payment of duty. This said goods were used for manufacture of tractors which were cleared without payment of duty under exemption. The app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person. It is cleared in assembled condition from the appellants factory and is obviously a marketable commodity. The automobile sub-assemblies are manufactured by. 4.2. It is natural that if such an assembly would be classifiable as part of tractor. The entry 295 of the notification 6/2002-CE exempted all goods of heading 87.01 from duty w.e.f. 9.7.2004. The entry 296 of the same notification exempted Parts used within the factory of production for manufacture of the goods of heading 87.01 from whole of duty. Thus there was no exemption to parts of tractors manufactured outside the factory of production of tractors. various auto ancillaries and there is a market of the same. 4.3. The appellant have sought benefit of notification No. 214/86-CE. It exempts specified goods manufactured in a factory as a job work and used in or in relation to manufacture of final products on which duty of excise is leviable whether in whole or in part. In the instant case goods manufactured on job work basis are the sub-assemblies of the tractors. The tractors are fully exempt form the duty of excise, in that view it has been alleged that the appellants are not entitled to the notification No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e only. In the present case the term used is not any duty of excise but duty of excise only. Similarly the decision in the case of Silvasa Industries Pvt. Ltd. v. C.C.E. - 2006 (196) E.L.T. 213 (T) is also not relevant as in that case, finished goods were exempted only from NCCD and were otherwise chargeable to other duties which may include excise duty also. The Tribunal was no where required to interpret the term exempted goods as defined under Rule 2(d) of the Cenvat Credit Rules and the issue as to whether the final product which is exempted from excise duty but chargeable to cess can be considered as exempted goods or not. Since the tractors are exempted from duty of excise specified both in First Schedule of the Tariff Act and Second Schedule to the Tariff Act, it has to be considered as exempted and not dutiable as is being contended by the appellants. In view of the same the appellants are required to follow the provision of Rule 6(2) and (3) of the Cenvat Credit Rules. In view of above, it is clear that the exemption notification 214/86-CE would not be applicable even if cess is paid on tractors as the cess cannot be considered to be a duty of excise for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ground that Mahindra Mahindra have filed declaration under notification No. 214/86-CE on 9.5.2005 declaring the appellant as job worker. In this regard it is noticed that the demand of duty has been made for goods received prior to 9.5.2005. 4.6. M/s. AFM have also claimed cenvat credit of duty paid on inputs the said credit has been denied on various grounds like - 1. In the cases relied upon by the appellant, the invoices were in the name of the manufacturer and they had not availed credit as only a procedural compliance was not by them. 2. Inputs were transferred on Returnable Gate Pass cum Challan. 3. Though, appellant and M M had furnished details of duty paying documents, it is observed that the said documents were in the name of M M. 4. No correlation was made between the said duty paying documents and the Returnable Challans. 5. Returnable Challans are not prescribed documents for availing credit. 6. Rates shown in the duty paying documents and Returnable Gate Pass cum Challans are not relatable. 7. On some invoices M M have availed credit of cess, Partial availment is not permissible. We find that the cenvat credit has n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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