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TMI Blog2008 (8) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... 1102/2007 - 650-651/2008-EX/(PB), - Dated:- 27-8-2008 - S/Shri M. Veeraiyan, Member (T) and P.K. Das, Member (J) S/Shri L.P. Asthana, Nand Kishore A. jaju, Advocates, for the Appellant. Shri V. Choudhary, SDR, for the Respondent. [Order per : P.K. Das, Member (J) (for the Bench)]. - The appellant filed this appeal against the order of Commissioner of Central Excise wherein it has been held that the Cenvat Credit on the inputs Menthol flakes used in Menthol powder was wrongly availed by the appellant and the Cenvat credit amounting to Rs. 7,46,23,357/- of Excise duty, amount of Rs. 12,70,929.00 of Education Cess taken during the period May, 2004 to June, 2005 shall be treated as non est and to be reversed from the Cenvat ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 18 of Central Excise Rules, 2002. The Commissioner of Central Excise, Delhi filed Revision application before the Joint Secretary, Government of India against sanctioning of rebate claim, which has been rejected by order No. 1109/2006, dated 27-12-06 passed by the Joint Secretary to the Government of India. He also submits that the Government of India accepted the processing undertaken by the appellant is within the definition of "manufacture" under Central Excise Act, 1944. So, the impugned order passed by the Commissioner of Central Excise is not sustainable. He relied upon the report of Dr. H.M. Chawla, Professor of IIT, Delhi, wherein it is stated that the conversion of Menthol flake into Menthol powder amounts to "manufacture". He c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame is marketed as such and it does not come within the purview of the definition of "manufacture" under Section 2(f) of Central Excise Act, 1944. It has been observed on the basis of test report that Menthol flakes (83% approx) used as inputs which were processed by them and used in the production of Menthol powder (90% approx). The adjudicating authority held that conversion of Menthol flakes into Menthol powder does not amount to manufacture and the appellant is not eligible to utilise Cenvat credit on the finished products under Rule 3(4) and Rule 16 of Cenvat Credit Rules, 2004. 6. On the other hand, that the appellant strongly relied upon the report of Dr. H.M. Chawla, Professor, IIT Delhi to prove that conversion of Menthol flake ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per Board's Circular No. 489/55/99-CX, dt. 13-10-99 [F.No. 209/30/99-CX-VI] even if a process does not conform to manufacture, a wider connotation has to be applied for the purposes of export benefit and which has been relied upon in a number of judgments, including Winsome Yarns - 2004 (172) E.L.T. 286 (Tri-Del), PET Plastics - 2006 (195) E.L.T. 280 (Tri-Mum) and Weston Electronics [2000 (116) E.L.T. 181(Tri)]. 8. In the facts and circumstances of the case and the legal position as discussed at paras 6 7 above, it is therefore not considered essential and necessary to dwell into nuances of the "manufacture aspect" as pleaded in detail by both the appellants and respondents and there seems to be no infirmity in the order of Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... towards the payment of duty. The appellant assessee is not claiming any refund of the duty paid inasmuch as he is of the view that the process carried out by him amounted to manufacture. In these circumstances, the credit taken and the duty are best left undisturbed. The Commissioner's direction for keeping accounts in terms of Rule 173H for further receipts of flywheels may be observed by the appellant assessee so that future disputes are avoided. The appeals are disposed of in the above terms." 8. In view of the above discussions, we find that rebate was granted on duty paid on Menthol powder and therefore, credit cannot be denied on Menthol flakes used in the processing of such goods. It is noted that Revisionary Authority Govt. of I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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