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TMI Blog2020 (1) TMI 481X X X X Extracts X X X X X X X X Extracts X X X X ..... activities undertaken by the appellant amounted to manufacture of excisable goods within the meaning of Section 2(f) of the Central Excise Act, 1944. CENVAT credit - HELD THAT:- The appellant is eligible to avail Cenvat credit of the duty paid on the said input machineries, parts, etc. under the Cenvat Credit Rules and there is no infirmity on the part of the appellant in availment of Cenvat credit in the instant case. The disallowance of Cenvat credit of ₹ 1,76,17,647/- and the duty demand of ₹ 61,94,772/- confirmed by the impugned order against the appellant are therefore unsustainable. Appeal allowed - decided in favor of appellant. - Excise Appeal No.193 of 2007 - FINAL ORDER NO. 76955/2019 - Dated:- 18-12-2019 - HON BLE SHRI P. K. CHOUDHARY, MEMBER(JUDICIAL) AND HON BLE SHRI BIJAY KUMAR, MEMBER(TECHNICAL) Dr. Samir Chakraborty, Sr. Advocate and Shri Abhijit Biswas, Advocate for the Appellant (s) Shri K. Choudhary, Authorized Representative for the Respondent (s) ORDER P.K. CHOUDHARY : This appeal is against an Order-in-Original No.37/Commr/Bol/06 dated Decem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that the appellant had irregularly availed Cenvat credit on machines and other input materials procured from the suppliers and had wrongly utilised a part thereof because there was no manufacture of the final products which were exported from the appellant s factory with the said input materials since the appellant did not have the machinery for carrying out such manufacturing work and the assembly and connection of various machines and parts in the said factory carried out by the appellant did not result in emergence of a new product and, hence, the subject goods were exported without undertaking any manufacturing activity. In addition, it was alleged that the said input materials on being inspected by a Chartered Engineer firm was found to be allegedly old and used and that they were not manufactured goods of the suppliers but were bought and brought into the factory and consequently the invoices under which the said input materials brought were documents on which no Cenvat credit was allowable. Proceedings under this show cause notice has resulted in the impugned order, being aggrieved by which the instant appeal has been preferred by the appellant. 4. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner has erred in holding that the processes undertaken by the appellant on the subject goods was only making of holes/brackets, checking of alignment, fitting of motors, alignment of various parts/machines, drilling/taping of holes, matching of bearings, welding, checking of functioning of machines, programming of machines, etc. The manufacturing processes flow charts submitted by the appellant along with the reply to the show cause notice demonstrate the patent incorrectness of this finding. (c) From the manufacturing processes detailed in the said flow charts and from the records of the instant proceedings, including the show cause notice and the impugned order, it would be evident that the items exported (the final products) were not single machines but combination of various machines, each having specific function like galvanisation of coil and that when installed at the destination and put together the same would function as a complete plant different from the parts and components comprising the same. This also clearly demonstrates that what were exported by the appellant were new commodities different from the input materials. (d) In case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r raised by the said jurisdictional officers regarding the validity and legality of the appellant availing Cenvat credit in respect of the subject goods. In such circumstances, as per settled law, the extended period of limitation is not applicable. The vague reasons contained in the impugned order in support of invoking the extended period of limitation are devoid of any merit and do not satisfy the requirements laid down by the Apex Court for invocation of the Proviso to Section 11A(1) of the Act. 6. It has been contended on behalf of the Revenue by the Learned Authorized Representative, besides reiterating the findings of the Commissioner in the impugned order, as follows: (a) There was no assembly of the subject goods but reassembly thereof upon obtaining the same in CKD condition and the only work done was replacement of minor parts because of wear and tear and hence the decisions relied upon on behalf of the appellant to establish that assembly of parts and components obtained even in SKD/CKD condition to form a different excisable goods falling under different tariff heading of the Central Excise Tariff were not applicable to the instant case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ail cenvat credit of the duty paid on the said procured goods. 10. Dealing with the issue as to whether assembling of duty paid components of a weighbridge amounts to manufacture , the Hon ble Supreme Court in the case of Narne Tulaman Manufacturers Pvt. Ltd. Vs. Collector of C.E., 1988 (38) ELT 566 (SC) observed and held as follows: 3. The appellant s contention before the Tribunal was that it was only preparing a part and that part is dutiable as a separate part. The appellant, however, did the work of assembling. As a result of the work of the appellant a new product known in the market and known under the excise item weighbridge comes into being. The appellant will become a manufacturer of that product and as such liable to duty. This is precisely what the Tribunal found on the facts of the case. The appellant seems to have been obsessed by the idea that as a part of machine is liable to duty then the whole end product should not be dutiable as separate excise goods. That is mistake, a part may be goods as known in the excise laws and may be dutiable. The appellant in this case claims to have manufactured only the indicator system. If the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the activity undertaken by them into a non-manufacturing activity. Accordingly we fully agree with the findings of the Commissioner that fitting and assembling of separately identifiable products results into an altogether separate identifiable final product having a specific identity, name and use. Accordingly we reject the said plea o the appellants. 13. In the instant case also we find that it is an undisputed fact that the appellant procured duty paid machineries, parts and accessories of Continuous Automatic Coil to Coil Colour Coating Line and Briqueting Hydraulic Press and carried out the processing jobs thereon as set out in the impugned order, which included assembly to produce the aforesaid final products which were exported upon payment of duty under claim of rebate. It is also seen from the records that the input machines, parts and accessories were goods classifiable as excisable goods by themselves under tariff items different from the tariff items under which the exported final products were classified. Hence the principle laid down in the aforesaid decisions of the Hon ble Supreme Court and this Bench of the Tribunal are applicable to the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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