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TMI Blog2008 (7) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... r Harin P. Raval, for the Appellant. None, for the Respondent. [Order per : D.A. Mehta, J. (Oral)]. - Originally when the appeal was filed, the following question was proposed by appellant-revenue. (a) Whether in the facts and circumstances of the case, the Tribunal is justified in holding that the respondent could have availed of Modvat credit in respect of the goods which could not undergo the process of manufacture within the meaning of Section 2(f) of the Central Excise Act, 1944 and in respect whereof, the respondent-assessee had paid duty on its own though not required under the law to pay? The same was subsequently re-framed and the re-framed question reads as under : (1) Whether, in the facts and circumstances of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f appeal as well as at the time of personal hearing. The issue for determination is whether the activity of re-packing from bulk packs to lower packs amounts to manufacture within the meaning of Section 2(f) of the Central Excise Act, 1944 or not. I find that the appellant has received "Elmo Luft 1A" falling under CSH No. 3208.40 in bulk packs from Dr. Bex Co. (I) Ltd. and with the help of special purpose machines prepared small marketable packages and cleared the same on payment of duty under cover of invoice. The department had granted the C.Ex., registration to the appellant. In the present case, I find that the appellant had received the goods in bulk, carried out testing/inspection, packed in smaller containers with automatic machine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . the re-packed goods in small packs. Accordingly, the process has to be treated as amounting to manufacture. 5. With regard to Modvat credit on duty paid inputs, I find that the appellant has received duty paid raw materials, the said raw material has been received in the factory and were utilized in the manufacture of final products. In view of this and considering the position as indicated above, I set aside the impugned order and allow the Modvat credit of Rs. 1,70,53,294.00. I also set aside the penalty of Rs. 5,00,000/- and demand of interest under Section 11AB of the Central Excise Act, 1944. 4. The Tribunal in the impugned order after recording facts in paragraph No. 2 of its order has noted that in assessee's own case in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturer as defined in Section 2(f) of the Central Excise Act, 1944. The appellate authority has taken into consideration the activities carried on by the respondent-assessee. The Tribunal is justified in holding that if the activity of the respondent-assessee does not amount to manufacture there can be no question of levy of duty, and if duty is levied, Modvat credit cannot be denied by holding that there is no manufacture. 7. In the aforesaid set of facts and circumstances of the case in light of concurrent findings of fact recorded after appreciating the evidence on record by both Commissioner (Appeals) and the Tribunal, no question of law, much less a substantial question of law, arises out of impugned order of Tribunal. The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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