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TMI Blog2023 (12) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... in favour of the respondent/assessee - questions of law on which the appeal was admitted, stands answered against the appellant/Revenue and in favour of the respondent/assessee. Appeal dismissed. - THE HON BLE SRI JUSTICE P. SAM KOSHY And THE HON BLE SRI JUSTICE N. TUKARAMJI JUDGMENT ( Per Hon ble Sri Justice P. SAM KOSHY ) The instant Central Excise Appeal is preferred by the Revenue assailing the order passed by the Customs, Excise And Service Tax Appellate Tribunal (for short the Tribunal ) in Appeal No.E/1106/2005 decided on 22.05.2006. 2. Heard Sri A. Rama Krishna Reddy, learned Standing Counsel for CBEC appearing for the appellant/Revenue and Sri Yammanuru Siri Reddy, learned counsel for the respondent/assessee. 3. Vide the said impugned order, the Tribunal has allowed the appeal filed by the respondent/assessee setting aside the Order-in-Original dated 26.09.2005 passed by the Office of the Commissioner of Customs and Central Excise, Hyderabad, in C.Ex.No:22 of 2005. The Commissioner vide the Order-in-Original dated 26.09.2005 held that the respondent/assessee had wrongly availed MODVAT/CENVAT Credit on the capital goods in contravention to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent/assessee. However, when the matter travelled before the Tribunal, the Tribunal upon careful consideration of the statements which were recorded during the course of proceedings before the Commissioner and also upon careful consideration of the documents that were perused during the course of proceedings had reached to the following conclusion: 6. On a careful consideration of the entire matter, we are of the view that the present case is squarely covered by the ratio of the decisions by the learned Advocates. We find that upto 30.09.2002, the appellants had been clearing the goods under job work procedure availing the Notification 214/86. In terms of the Bajaj Electricals Ltd.(supra) case, the modvat credit on the Capital Goods cannot be denied on the Capital Goods cleared when the Capital Goods are used both in the dutiable and exempted goods. Also for the period subsequent to 30.09.2002, the products have been cleared on payment of duty. Hence, it cannot be said that the Capital Goods have been used exclusively for the production of exempted goods. As Tribunal decision in the case of Madura Coats Pvt. Ltd. (supra). The ratio of the Larger Bench decision in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but ultimately gets paid at the manufacturer s end. 10. The view of the High Court of Bombay was relying upon the judgment of the Hon ble Supreme Court of India in the case of ESCORTS LTD V. THE COMMISSIONER OF CENTRAL EXCISE, DELHI 2004 (171) E.L.T. 145 (S.C.) wherein in paragraph Nos.6, 8, 10 and 11 it has been held by the Hon ble Supreme Court as under: 6. It is the contention of the Respondent, which has been accepted by CEGAT, that Rule 57C would become applicable as the parts are cleared from one factory to another without payment of duty. In our view, this reasoning cannot be accepted. The underlined portion of the Notification, set out hereinabove, shows that the inputs may be used within the factory of production or in any other factory of the same manufacturer. Thus merely because parts are cleared from one factory of the Appellants to another factory does not make the parts the final product. It is not denied that the parts, which are manufactured from the duty paid inputs, are used in the manufacture of tractors and that the duty is being paid on the tractors. 8. It is to be seen that the whole purpose of the Notification and the Rules is to streamline ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. The High Court of Allahabad in the case of COMMISSIONER OF C. EX., NOIDA Versus SAMSUNG INDIA ELECTRONIC LTD. 2014 (309) E.L.T. 593 (All.) dealing with a somewhat similar situation in paragraph No.16 held as under: 16. We find that SEIITL only manufactured the chassis, which is only a part of a TV. It is not a finished product and is only an intermediary product. We also find that SEIITL supplied intermediary product to SEIL, which manufactured the TV and paid duty on it. Consequently, it was entitled to avail Cenvat credit in order to prevent the cascading effect, if duty was levied. We are of the opinion that SEIITL, which was the job worker was entitled to duty paid on inputs and used in the manufacture of intermediary product. Consequently, for the reasons stated aforesaid, the appeal fails and his dismissed. The questions of law are answered in favour of the assessee and against the department. 13. The Madras High Court in the case of THE COMMISSIONER OF CENTRAL EXCISE VERSUS M/S. KYUNGSHIN INDUSTRIAL MOTHERSON LTD. 2015 (11) TMI 899 MADRAS HIGH COURT relying upon the same notification in paragraph Nos.9 and 16 have held as under: 9. We find that in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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