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TMI Blog2017 (10) TMI 893X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant, in that circumstances, it will be the case of demand of duty twice on the same product which is not permissible in law - demand set aside. Penalty - Held that: - as duty has been paid on the transaction value of the said goods, in that circumstances, it cannot be said that the appellants were having any intention to pay less duty on the said goods - penalty also set aside. Appeal allowed - decided in favor of appellant. - E/519 & 527/2009 - A/61982-61983/2017-EX[DB] - Dated:- 13-10-2017 - Mr. Ashok Jindal, Member (Judicial) And Mr. Devender Singh, Member (Technical) Sh. B.L. Narasimhan, Advocate for the Appellant Sh. Tarun Kumar and Sh. G.M. Sharma, AR for the Respondent ORDER Per : Ashok Jindal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs were initiated against the appellants, consequently, the differential duty was demanded along with interest and penalties were also imposed on the appellants. Aggrieved from the said orders, appellants are before use. 3. The Ld. Counsel for the appellants submits that the appellants are only job worker and after receiving the bended steel tubes, they have manufactured economizer coils and super heater coils. After testing at their end, the goods were supplied to the principle manufacture M/s ISGEC who further undertook the activity of testing and thereafter the goods were cleared on payment of duty. As before testing conducted by the M/s ISGEC, the goods were not marketable, therefore, provisions of Rule 10A(ii) are not applicable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appellants then M/s ISGEC to take Cenvat Credit to the same or not required to pay the duty on the said goods. To support his contention, he relied upon the decision of CCE Vs. Reclamation Welding Ltd. - 2014 (308) ELT 542 (Tri. Ahmd.). He also relied upon the decision of CCE Vs. Coca Cola India Pvt. Ltd. - 2007 (213) ELT 490 (S.C.). He further submits that in terms of Rule 4(5) read with Rule 4(6) of Cenvat Credit Rules, 2004 no duty is payable as there is no dispute that raw material sent by M/s ISGEC to the appellants and there is no dispute that the goods were cleared by the M/s ISGEC on payment of duty. As the appellants manufactured the said coils after procuring certain consumables like welding material, gases etc and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it will be the case of demand of duty twice on the same product which is not permissible in law. Therefore, although we hold that the appellants are liable to pay duty as per Rule 10A(ii) of the Valuation Rules but in the facts and circumstances of the case as duty has already been paid on the said goods, therefore, no duty is payable by the appellants. 8. On the issue of penalty, we find that as per the statement and agreement between the parties M/s ISGEC has undertaken of testing at their end after goods were supplied by the appellant to M/s ISGEC. In that circumstances, activity of testing done by the M/s ISGEC amounts to manufacture as Note 6 to Section 16 of the 1st schedule of Central Excise Tariff Act, 1985. On the basis of sai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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