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TMI Blog2024 (3) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... ly barred by limitation. There is no doubt that the appellant did avail Cenvat Credit on the goods received by them at their factory premises and after processing, they have paid the duty higher than the Cenvat Credit availed. It has been held by various judicial bodies that where credit has been availed of and duty paid, which was not lesser in amount than the credit availed, there is no need for initiation of proceeding against the assessee. In a catena of decisions it has been held that when final product is treated as dutiable and duty paid thereon, the facility of Cenvat Credit is open to them and there is no question of the reversal of the said credit. The Cenvat Credit availed by the appellant is not deniable. The impugned order of the lower authority is vexatious in law and fails to succeed both on the grounds of limitation as well as merits - Appeal allowed. - HON BLE MR. R. MURALIDHAR MEMBER ( JUDICIAL ) And HON BLE MR. RAJEEV TANDON MEMBER ( TECHNICAL ) For the Appellant : Shri N. K. Chowdhury , Advocate For the Respondent : Shri S. Mukhopadhyay , Authorized Representative ORDER PER : RAJEEV TANDON The appellant M/s. Ganga Rasayanic Pvt. Ltd. have filed the present app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Tariff Act, 1985 which specified excisable goods to be assessed under the provisions of Section 4A of the Central Excise Act, 1944 3rd criteria of manufacture as specified in Section 2(f)(iii) of the said Act does not apply to the instant case. 4. The case essentially being that packing of the said goods (inputs) referred to supra received in bulk quantities, into a smaller packs- drums/barrels does not amount to manufacture and therefore as the same were not used by the appellant in the manufacture of final products the appellant was not entitled to avail of the benefit of rule 2(k) of the Cenvat Credit Rules 2004 read with rule 3(1) of the said rules ibid. Accordingly, it was alleged that during the period 2008-09 to 2012-13 (December 2012), the appellant had availed Cenvat Credit to the tune of Rs. 4,39,41,435/-, in contravention of the provisions of rule 3(1), 4-9 of the Cenvat Credit Rules 2004. Thus, in terms of the rule 14 of the Cenvat Credit Rules 2004 read with first proviso to Section 11A(1) of the Central Excise Act, the said amount was demanded, alongwith interest as due under Section 11A. The show cause notice also alleges suppression and deliberate mis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmit that the demand is mostly barred by limitation, as the show cause notice has been issued on 26.04.13 for the period 2009-10 to 2012-13 (up to December, 2012). They contend that sub-section (1) of the section 11A of the Central Excise Act, 1944, is not applicable as it is not a case of non levy or short levy with intention to evade payment of duty. Further, there is no question of suppression of fact or willful misstatement with intent to evade payment of duty, as they had all along intimated to the department vide their communications referred supra, the nature of activities undertaken by them. Moreover, the show cause notice is a consequence of the examination of their Books of Accounts by the Audit team. In such cases, when the Audit team on examination of their Books of Accounts raised certain points of law as to whether the processes undertaken by them fall within the meaning of Section 2(f) of the Central Excise Act, 1944, the allegation of suppression of fact or willful misstatement cannot arise. They emphasized that ever since 2001 when they obtained the Central Excise Registration they have been maintaining statutory records showing that such processes amount to ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies to the audit query were supplied to the department, when the said objection was taken up by audit. The contention of the appellant is that the submission of the test report of the various products along with other technical details of products tendered vide letter dated 03.09.2008 demolishes any allegation of suppression of fact in the present case. 8.2. The appellant submits that the Aromatic solvent received by them in their factory is in an unfinished and semi-finished products state. The goods are received by them upon payment of Central Excise duty on which Cenvat Credit is availed, that they were required to finish such semi-finished goods in their factory according to the specification of their customers. They were required to mix different types of materials and also chemical solvents wherever necessary to finish them according to the requirements of their customers. They also undertake the process of filtration with charcoal/activated carbon. Wherever necessary, they also treated the materials with acid and caustic soda lye. Thereafter, they are blended and mixed with different varieties of goods to arrive at the finished goods as per the specifications of the customer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the assessee. Support to the said proposition in law is drawn from the following cases: (i) Commissioner of Central Excise Pune-III Vs. Ajinkya Enterprises, 2013 (294) ELT 203 (Bom.) (ii) Commissioner of Central Ex. Cus., Surat-III Vs. Creative Enterprises, 2009 (235) ELT 785 (Guj.) (iii) CCE, Bangalore Vs. Vishal Prcision Steel Tubes Strips Pvt. Ltd. 2017 (349) ELT 686 Kar. In a catena of decisions it has been held that when final product is treated as dutiable and duty paid thereon, the facility of Cenvat Credit is open to them and there is no question of the reversal of the said credit,- to the said ratio in law the decisions in the following judicial cases can be referred to: (i) Ashok Enterprises Vs. Commissioner, 2008 (221) ELT 586 (Tribunal) (ii) Commissioner Vs. M.P. Telelinks Ltd., 2004 (178) ELT 167 (Tribunal) (iii) Creative Enterprises Vs. Commissioner, 2009 (243) ELT A121 (SC) (iv) S.A.I.L. bansal Service Centre Ltd. Vs. Commissioner, 2007 (220) ELT 520 (Tribunal) (v) Super Forgings and Steels Ltd. Vs. Commissioner, 2007 (217) ELT 559 (Tribunal) 11. We also note that the case is revenue neutral and for this reason alone initiation of proceedings against the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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