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TMI Blog2023 (9) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court of Bombay has held that in the present case, the assessment on decoiled HR/CR coils cleared from the factory of the assessee on payment of duty has neither been reversed nor it is held that the assessee is entitled to refund of duty paid at the time of clearing the decoiled HR/CR coils. In effect, therefore, the utilization of credit for cleared products is tantamount to reversal and, hence, recovery of such credit is an exercise in superfluity. These decisions were not available with the adjudicating authority then and has settled the law on recovery thereupon. Learned Authorized Representative has suggested that actual availment and corresponding substantive reversal need to be verified. Matter remanded back to the orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not deem such activity to be manufacture and the said process did not also conform to any other facet of manufacture in section 2(f) of Central Excise Act, 1944 with no change in product or enhancement of marketability having occurred. It is on record that the appellant had been clearing the re-packed goods on payment of appropriate duties of central excise. 3. It is contended by Learned Counsel that the finding of no manufacture having taken place renders the collection of duty thereon to be beyond the pale of law and hence any credit availed for such clearance should, therefore, be adjusted against the recovery ordered by the adjudicating authority. It was further contended that the credit taken has been offset by availment at the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aves no room for doubt on facts. According to him, the finding of no manufacture having taken place renders the collection of duty thereon to be beyond the pale of law and hence not utilizable for adjustment towards confirmed demand for which reliance was placed on the decision of the Hon ble High Court of Gujarat in Commissioner of Central Excise, Ahmedabad-II v. Inductotherm (I) P Ltd [2012 (283) ELT 359 (Guj)]. It was pointed out that even if availed credit is to be construed as constructive reversal, the details of computation would have to be verified afresh. Reliance was placed on the decision of the of the Hon ble Supreme Court in Star Industries v. Commissioner of Customs (Imports), Raigad [2015 (324) ELT 656 (SC)] and in Mercanti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttedly, similar view taken by the Gujarat High Court in the case of Creative Enterprises has been upheld by the Apex Court [see 2009 (243) E.L.T. A121] by dismissing the SLP filed by the Revenue. 6. In effect, therefore, the utilization of credit for cleared products is tantamount to reversal and, hence, recovery of such credit is an exercise in superfluity. These decisions were not available with the adjudicating authority then and has settled the law on recovery thereupon. Learned Authorized Representative has suggested that actual availment and corresponding substantive reversal need to be verified. 7. Consequently, we set aside the impugned order and remand the matter back to the original authority for such verification and to l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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