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TMI Blog2018 (9) TMI 1575X X X X Extracts X X X X X X X X Extracts X X X X ..... duty paid by the appellant needs to be treated as a deposit and requires to be refunded as the appellants have shown that the same is not passed on - Revenue cannot change the goal posts and have two different approaches to the same issue for different periods more so when the facts are identical - In the interest of Justice and equity, the issue requires to go back to the original adjudicating authority - Matter on remand. Whether the credit availed on the Power Supply Units, in respect of which it has been alleged that proper accounts have not been maintained, is factually correct, if not whether Cenvat credit is allowable? - Held that:- Prima facie the appellants have made out a case that they have maintained record pertaining to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... distinct name, character or use emerges as a result of such processes; in terms of Rule 16 of Central Excise Rules 2002, the appellants ought to have paid an amount equal to the credit availed at the time of removal of such inputs on which credit was availed; they have short-paid credit of ₹ 1,46,85,041/- and that they have not maintained proper records of receipt, disposal, consumption of power supply unit as required under sub-rule 5 of Rule 9 of Cenvat Credit Rules, 2004. The Department has also alleged willful misstatement of facts. Commissioner of Central Excise, Bangalore vide Order-in-Original No. 20/2008 dated 31.10.2008 confirmed the demands and imposed equal penalty. Hence, this appeal. 3. The learned counsel for the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and PC Fax communication. He also submitted that some of the instruments are rejected and ZTE Corporation was informed to take them back and as and when the supplier takes back the same, Cenvat will be reversed. This process amounts to manufacture. The clearance of IFWT was on provisional basis. It is now settled law that testing of goods is integral part of manufacture in terms of Section 2(f) of the Central Excise Act 1944. He relied upon the following cases: Collector of Central Excise V. Rajasthan State Chemical Works 1991 (55) ELT 444 (SC) Biddle Sawyer Ltd. V. CCE, Mumbai 2004 (168) ELT 119 (T) Flex Engineering Ltd. V. CCE 2012 (276) ELT 153 (SC) 3.1. The Counsel submitted that though the Ld. Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tc. claimed by the appellants is done by the personnel of the purchaser i.e. BSNL in the premises of the appellant. Therefore, it cannot be held that the appellants are doing such processes although they do not amount to manufacture. 5. Heard both sides and perused the records of the case. The issues that require deliberation in the case are as follows: (i). Whether inspection, testing and loading of software on the imported IFWT-Telephone Instruments, before the clearance by the assessee, amounts to manufacture? and (ii). Whether the credit availed on the Power Supply Units, in respect of which it has been alleged that proper accounts have not been maintained, is factually correct, if not whether Cenvat credit is allowable? 5.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a different case involving of a refund claim of ₹ 7,33,29,913/- for the period 2003-04 and 2004-05 (Appeal No. E/845/2008). In that case also the appellants were involved in similar activity. The only difference being that the foreign supplier was M/s LG Electronics in that case where as in the instant case, it is ZTE Corporation. The processes involved in obtaining an order from BSNL, placing an order on foreign supplier, assembly/testing/loading of software in the factory and clearance to BSNL are identical in both cases. In case, the Revenue takes a stand that the activity undertaken by appellant does not amount to manufacture, the assessee succeeds in the earlier appeal as where the process do not amount to manufacture, the duty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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