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TMI Blog2022 (11) TMI 1069X X X X Extracts X X X X X X X X Extracts X X X X ..... 641-642 of 2012 and Excise Appeal No. 1608 of 2012 - FINAL ORDER NO. A/86091-86093/2022 - Dated:- 2-11-2022 - MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) AND DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Ms. Deepti Venugopal, Legal Manager, for the Appellant Shri Deepak Bhilegaonkar, Additional Commissioner, Authorised Representative for the Respondent ORDER These appeals are directed against Orders-in-Appeal No. BC/259 260/M-III/2011 dated 20.01.2012 and No. BC/181/MIII/ 2012-13 dated 27.07.2012 passed by the Commissioner of Central Excise (Appeals), Mumbai-III. By the impugned orders, the Commissioner (Appeals) has upheld three Orders-in-Original No. 39/Wagle-II/2010-11 dated 23.08.2011, No. 42/Wagle- II/2010-11 dated 30.08.2011 and No. 02/Wagle-II/12-13 dated 17.04.2012 of the Assistant Commissioner of Central Excise, Wagle-II Dn., Thane. The original authority in his orders has held as follows:- Order-in-Original No. 39/Wagle-II/2010-11 dated 23.08.2011 ORDER i) I confirm the demand of Cenvat Credit amounting to Rs.2,47,274/- against the assessee under Rule 14 of Cenvat Credit Rules, 2004 read with proviso to Section 11A(1) of Central Excise Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trucks in terms of Rule 16 of Central Excise Rules, 2002. After undertaking the processes these were cleared on payment of duty. It is the contention of Revenue that the processes undertaken did not amount to manufacture and hence they were not entitled to the credit of inputs used for repair of such products. Show cause notices dated 25.04.2011, 28.04.2011 and 15.12.2011 were issued asking the appellant to show cause as to why:- Show cause notice dated 25.04.2011 (i) The Cenvat credit availed totally amounting to Rs.2,40,072/- Basic and Cess Rs 7,019/- H.Ed. Cess Rs.183/- on the inputs and utilized for rejected goods and not reversed at the time of clearance should not be demanded and recovered from them under provisions of Rule 14 of Cenvat Credit Rules, 2004 read with the proviso to Section 11A (1) of the Central Excise Act, 1944. (ii) Interest at the appropriate rate should not be recovered from them under the provisions of Rules 14 of the Cenvat Credit Rules, 2004 read with Section 11AB of the Central Excise Act, 1944. (iii) Penalty should not be imposed on them under the provisions of Rule 15 of Cenvat Credit Rules, 2004 read with Section 11AC of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated. (iii) Penalty should not be imposed on them under the provisions of Rule 15 of Cenvat Credit Rules 2004 read with Section 11AC of Central Excise Act 1944. 2.3 The show cause notices were adjudicated as per orders referred in para 1 above. Appeals against the said orders have been dismissed by the Commissioner (Appeals) as per the impugned orders. Aggrieved appellant filed these appeals. 3.1 We have heard Ms. Deepti Venugopal, Legal Manager of the appellant and Shri Deepak Bhilegaonkar, Additional Commissioner, Authorised Representative for the Revenue. 3.2 Arguing for the appellant, learned representative for the appellant submits that:- In the present case the goods viz. forklift trucks were cleared by them on payment of duty but for certain reason they were rejected by the customers and were received back by them in their factory for which they followed the procedure as per Rule 16 by filing due intimation to the jurisdictional officer and took the credit of the duty paid pay them on the said goods. These goods after undertaking due processes were cleared by them on payment of duty at the appropriate rate applicable on the date of clearance treating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... qualifying to be 'amounting to manufacture' should bring about emergence of a new distinct character and identity from original commodity I find that since, the process carried out on the Forklift trucks by the assessee does not amount to manufacture, that is merely incidental or ancillary to the completion of a manufactured product i.e. FLTS and after conversion process the FLTS and can not be said that different type of products Hon'ble Supreme Court in CCE vs Kutty Flush Doors and furniture Co. 1988(35)ELT 6(SC) has held that manufacture' implies a change, but every change is not manufacture and yet every change of an article is the result of treatment, labour and manipulation. But something more was necessary and there must be transformation; a new and different article must emerge having a distinct name, character or use. Hon'ble Tribunal has also held in the case of Enfield India Ltd.vs CCE (1996 (88) E.L.T. 773 (Tribunal)) that the change or up gradation of the machine or change of some parts cannot be taken to be manufacture of a new product for excise purposes. 4.3 Commissioner (Appeals) has in the impugned order observed as follows:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial, or as fuel, or for generation of electricity or steam used in or in relation to manufacture of final products or for any other purpose, within the factory of production; 8. Since the process of repairs / reconditioning of the forklift does not amount to manufacture, no Cenvat can be availed on inputs used in such repairs. Hon'ble Tribunal in the case of Birla Corporation Ltd (2008 (224) E.L.T. 567 (Tri. - Mumbai)) held that Returned goods - Goods removed from factory on payment of duty, but brought back for remaking, refining, etc. Goods not subjected to a process amounting to manufacture Credit taken by appellant required to be reversed - Rule 16(2) of Central Excise Rules, 2002. 4.4 Annexure A to the show cause notice is reproduced below:- From the above annexure, it is quite evident that as a result of the processes undertaken, the goods as received were converted to different capacity and to different model number. They were even cleared to different customers. The adjudicating authority himself observed that the processes undertaken was incidental and ancillary to the completion of the manufactured products . 4.5 This finding of the adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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