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TMI Blog2019 (4) TMI 1141X X X X Extracts X X X X X X X X Extracts X X X X ..... led position of law that subsequent reversal of Modvat credit is to be considered as non-taking of the credit - It is not in doubt that at the time of clearance of the machinery for export, duty stand paid. Since the duty is paid at the time of clearance of the final product, the credit availed on the inputs stand reversed already - thus, such credits are to be considered as non-taken abinitio. There is no justification for ordering payment of cenvat credit all over again - Appeal allowed - decided in favor of appellant. - Appeal Nos. E/278/2009 & E/412/2006 - ORDER NO.FO/A/75027-75028/2019 - Dated:- 7-1-2019 - SHRI P. K. CHOUDHARY, JUDICIAL MEMBER AND SHRI V. Padmanabhan, Member (Technical) Dr. Samir Chakraborty, Sr. Advocate and Shri Abhijit Biswas, Advocate for the Appellants Shri H.S. Abedin, AC(AR) for the Revenue. ORDER Per Shri V. Padmanabhan : These two appeals are on identical facts and hence are being taken up for decision through this common order. Both the appellants are one andthe same company but known by different names during the relevant points of time. The Appeal No. E/278/200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further, penalties were also imposed. These orders are under challenge in the present proceedings. 3. Appellants are represented by Dr. Samir Chakraborty, Sr. Advocate and Revenue is represented by Shri Abhijit Biswas, Advocate. 4. Ld. Senior Advocate argued the case on behalf of the appellants. The main arguments are summarized below; i) The machinery which has been exported is described as Continuous Automatic Coil to Coil galvanizing Line . Since this was a very complex machinery, several components and sub-systems had to be procured from outside. But he strongly refuted the view taken by the adjudicating authority that no manufacture happened in the appellant s factory. He drew our attention to the paragraph 75 of the impugned order dated 31.03.2006, in which the adjudicating authority has given a table indicating the various activities carried out by the appellants in the factory, before export of the complete machinery. He also brought our notice to the process of manufacture which was outlined in the form of note, which is part of the appeal papers. ii) With the support of the drawings, table as well as the process of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He referred to the observations of the adjudicating authority regarding the various activities carried out in the factory. He highlighted that the activities carried out were relatively minor such as fitting, fixing, testing and alignment. For carrying out such minor activities, it cannot be said that the appellants have undertaken manufacture in its factory. The adjudicating authority s conclusion that no manufacture has taken place in the factory is fully justified. ii) Ld. DR further referred to the decision of the Tribunal in the case of Ford India Pvt. Ltd. vs. Commr. Of C.Ex., Chennai [2007(214) ELT 40 (Tri.-Chennai)]. He submitted that the Tribunal in the said case has held that the components purchased and exported after qualitychecking, sequencing, packing/palleting etc. cannot be considered to have been manufactured. iii) He also relied on the decision of the Hon ble Supreme Court in the case of KCP Ltd. vs. Commr. Of Central Excise, Chennai [2013(295) ELT 353(S.C.)]. The Hon ble Supreme Court held that an assessee, who had purchased some machinery from others and exported the same in exact condition without even unpacking it, will not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Revenue cannot ask for repayment of cenvat credit all over again. 10. The Continuous Automatic Coil to Coil galvanizing Line is a very complex machinery. Such complex machineries are invariably cleared from the factory in multiple consignments for facilitating transport. Since such clearances happened in completely knocked down form, the machinery achieves its assembled form only at the site of the buyer. The practice of assessment in such cases is that Central Excise duty is required to be paid at the factory gate on the complete machinery as cleared in its disassembled form. 11. It is not in dispute that the appellant has procured the various inputs components and sub-systems which made up the complex machinery. It is also not in dispute that these goods have been received in the appellant s factory. Further, there is no dispute that any of the goods so procured are not required in the assembly of the machines cleared for export. Consequently we find no reason to take the view that the cenvat credits taken are improper. 12. The adjudicating authority has denied such cenvat credit mainly citing the reason that no manufacture has happen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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