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TMI Blog2024 (3) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... not amounting to manufacture . On perusal of the dates, it is seen that the registration has been revoked only after the disputed period. The appellant was holding Central Excise registration for the disputed period which is from 1.2.2013 to 1.1.2014. The disallowance of credit is not justified. The impugned order is set aside - Appeal is allowed. - HON BLE MS. SULEKHA BEEVI.C.S., MEMBER (JUDICIAL) HON BLE MR. VASA SESHAGIRI RAO, MEMBER (TECHNICAL) For the Appellant : Mr. Raghav Rajeev, Advocate For the Respondent : Mr. R. Rajaraman, Assistant Commissioner (A.R) ORDER ORDER : [ Per Ms. Sulekha Beevi. C. S ] Brief facts are that the appellants are importers of refrigerators, freezers, household or laundry type washing machine, dishwashing machines etc. falling under Chapter 84 85 of CETA 1985 They applied for Central Excise Registration claiming to be manufacturer of the above goods on 13.02.2005. The appellant claimed that the they were undertaking packing/repacking, labelling/relabeling of the goods after clearance of the goods from Custom House. The appellant availed cenvat credit of CVD paid by them on the import of goods and using the same for discharging excise duty on the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CCE Pune - 2013 (288) ELT 247 (Tri.-Mumbai). It is submitted that the said case the Tribunal held that the department cannot deny the credit alleging that the activity does not amount to manufacture . The said decision was upheld by the Hon ble High Court of Bombay reported in 2013 (294) ELT 203 (Bom.). 4. The Tribunal in the recent decision in the case of Luk India Private Ltd. Vs CGST Central Excise, Salem 2024 (2) TMI 1018-CESTAT CHENNAI had occasion to consider the similar issue and following the decision in the case of Ajinkya Enterprises as well as other decisions to hold that the department cannot deny the credit alleging that the activity does not amount to manufacture when they have already collected the duty on the products. The Ld. Counsel prayed that the appeal may be allowed. 5. Ld. A.R Sri R. Rajaraman appeared and argued for the Department. Ld.A.R vehemently argued that the activity does not amount to manufacture and therefore disallowance of credit and the confirmation of demand is legal and proper. It is submitted that the department had issued a show cause notice dt. 6.3.2014 proposing to revoke the Central Excise Registration issued to the appellant on 13.2.2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Creative Enterprises has been upheld by the Apex Court [see 2009 (243) E.L.T. A 121] by dismissing the SLP filed by the Revenue. 3.3 The Tribunal in the case of Domino Printech India Pvt.Ltd. Vs. CCE ST Gurgaon, Haryana 2019-TIOL-3428- CESTAT-Chandigarh had occasion to consider similar issue and observed as under: 11. We find that the imported ink container, the appellant has availed credit of CVD paid by them on the premise that the activity of refilling / relabelling. As discussed above, as per Chapter Note 7 to Chapter 32, the activity undertaken by the appellant does not amount to manufacture. Therefore, the appellant is not entitled to avail credit of CVO paid by them at time of import. But as per the decision of the Hon'ble Bombay in the case of Ajinkya Enterprises (supra), by upholding the finding of this Tribunal that if the activity does not amount to manufacture and the goods have been cleared on payment of duty, in such case, the duty paid by the assessee which has been accepted by the department and more than the credit availed. In that circumstances, the duty paid by the assessee shall amount to reversal of credit and the assessee is not required to reverse the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... products has been accepted by the department, CENVAT credit availed need not be reversed even if the activity does not amount to manufacture. Admittedly, 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 Bled by the Revenue. 6. In view of the judgement of the Hon ble Bombay High Court, the impugned order is devoid of merit and consequently, the same is set aside and the appeal is allowed with consequential relief, if any, as per law. 3.5 Similarly, in the case of M/s. Tristar Enterprises Vs. CCE Mumbai, 2019-TIOL-3247-CESTAT, Mumbai, it was held that once duty is paid on finished products and accepted by the department, the CENVAT credit availed on the inputs need not be reversed even if the activity does not amount to manufacture. 5. We have carefully considered the submissions advance by both sides. The short issue involved in the present appeal for determination is whether the assessee is entitled to CENVAT credit of duty paid on raw materials which were processed and resulted into finished product and cleared on payment of duty. The allegation of the Revenue is th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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