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TMI Blog2018 (8) TMI 947X X X X Extracts X X X X X X X X Extracts X X X X ..... pter 85 of CETA 1985 for which the CRGO Coils is the main input. It becomes clear that the unused input if cut into any other form but since is not used in the manufacture of final product of the appellant the same can be nothing more than the clearing of the unused input/ raw material. The appellant has removed the inputs as such and has failed to reverse the equal cenvat credit which has been taken on the said inputs and thus has contravened the provision of Rule 3 (5) of Cenvat Credit Rules, 2004 (CCR) Rule 2004. The appellant rather, while removing the inputs as such was required to pay cenvat credit taken by them. With respect to this show cause notice dated 27.10.2015 the appellant has submitted that the adjudicating authority below has failed to consider the documents of the appellant i.e. Exhibit-F at page no. 155 wherein it has been specifically shown that the cenvat credit availed by the appellant is much less than the duty paid by him. Perusal of the document reflects correctness in the contention of the appellant order under challenge is observed to be silent to this aspect - The matter is remanded back to the Additional Commissioner however for the limited purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19.12.17 (Pg. 87) 2,64,463 The appeal was partly allowed after taking into consideration the actual credit taken on goods and duty paid on such goods cleared on payment of duty. The differential amount ₹ 2,46,463/- alongwith interest and penalty was paid to avoid further litigation. 2 25.07.16 (Page 92) Sep 2015 to Feb 2016 06.06.17 (pg. 97 3,07,273 23.10.17 (Pg 101) Appeal allowed. Cenvat credit availed was ₹ 15,87,556. The amount paid at the time of clearance as duty ₹ 18,58,634. No amount payable. 3 24.08.15 (Page 45) Oct 2011 to Jan 2013 05.04.16 (pg. 30) 48,99,673 24.10.17 (Pg. 23) 48,99,673 O-I-O confirming the demand upheld as records could not be produced. 4 27.10.15 (Page 53) Oct 2014, Dec 2014 and June 2015 05.04.16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... removal of inputs as such 5. The case law Lal Woolen And Silk Mills (P) Ltd. Vs. Collector of C. Ex., Chandigarh 1999(108) ELT 7 (SC) is being relied upon. It is also submitted that even if it is not manufacture the appellant was under bonfide impression for it to be so. Also in circular no. 911/1/2010- CX dated 14.01.2010 in cases where the process under taken by assessee in-disputably does not amount to manufacture, the mandate was fixed on the department, to inform the said assessee about the correct legal position and advising not to pay duty and not to avail credit on input. It is submitted that the department has never given any such information to the appellant due to which appellant continued under bonafide belief of CRGO Coils of 72261100 it being cleared in cut coils of specified size, as manufacture. The liability is alleged to have wrongly been raised and confirmed. Finally impressing upon the letter dated 30.01.2013 as was submitted by the appellant to the Superintendence Central Excise range III, it is submitted that the appellant has paid much more duty then the credit as has been availed by him. Seen from all these angles, the findings of the order under chal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctivity is cutting and silting of CRGO Coils irrespective the Tariff head had been changed but to still to be called as manufacture, the activity has either to be identical or ancillary to the completion of final product or should itself amount to manufacture or should be a process which in relation to the goods specified in third schedule involves packing or re- packing of such goods in a unit container. The main product of appellant, admittedly, is the manufacture of transformer core stack falling under Chapter 85 of CETA 1985 for which the CRGO Coils is the main input. It becomes clear that the unused input if cut into any other form but since is not used in the manufacture of final product of the appellant the same can be nothing more than the clearing of the unused input/ raw material. From no stretch of imagination same can be called as manufacture. In the given circumstance irrespective the Tariff Heading of the cut CRGO Coils change from that of the input it still will not be the manufacture. The Hon ble High Court Delhi in the Case of Faridabad Iron Steel Traders Association Vs. Union of India 2004 (178) ELT 1099 has held that the process of cutting or slitting of steel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant. In the given circumstances the question of suppression of fact or the misrepresentation as is alleged against the appellant is not sustainable. 11. Though ld. DR has justified the findings of the adjudicating authority below submitting that the period of October, 2011 to January, 2013 of show cause notice dated 24.8.2015 could not be covered under the earlier show cause notice dated 27.02.2014 as the related information was not provided by the party during the preparation of the said earlier show cause notice. The copy of ER-Return for the said period was submitted later hence the department has rightly invoked the extended period of limitation. But we are not convinced with the arguments lead by ld. DR as it is very much apparent from the documents in defense that the appellant were regularly reporting their activities in their ER-Return. Every year the audit team was checking their records hence the amount of duty paid by the appellants on the clearance of CRGO Coils 72261100 and the cenvat credit availed also the difference thereof was very much to the notice of the department. Therefore no intention of alleged misrepresentation is apparent on part of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant has submitted that the adjudicating authority below has failed to consider the documents of the appellant i.e. Exhibit-F at page no. 155 wherein it has been specifically shown that the cenvat credit availed by the appellant is much less than the duty paid by him. Perusal of the document reflects correctness in the contention of the appellant order under challenge is observed to be silent to this aspect. Since the computation is required for the present purpose we deem it appropriate that the matter be remanded to the adjudicating authority for the computation of the amount of cenvat credit availed by the appellant and the amount of total duty paid by him so as to know as to whether there is any difference which may be called as short levy as has been alleged. Resultantly the order under challenge qua this show cause notice also stands set aside. The matter is remanded back to the Additional Commissioner however for the limited purpose as above i.e. for computation. 13. As a result entire above discussion the appeal in hand stands allowed as with respect to the show cause notice dated 24.08.2015 the order is set aside, the show cause notice being barred by time. With respect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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