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TMI Blog2024 (7) TMI 467X X X X Extracts X X X X X X X X Extracts X X X X ..... of MPORTAL INDIA WIRELESS SOLUTIONS (P.) LTD. VERSUS COMMISSIONER OF SERVICE TAX [ 2011 (9) TMI 450 - KARNATAKA HIGH COURT] , the Hon ble High Court had observed 'In the absence of a statutory provision which prescribes that registration is mandatory and that if such a registration is not made the assessee is not entitled to the benefit of refund, the three authorities committed a serious error in rejecting the claim for refund on the ground which is not existence in law. Therefore, said finding recorded by the Tribunal as well as by the lower authorities cannot be sustained.' Thus, the appellants are entitled to avail CENVAT credit on the inputs viz., Propane and Butane which were later utilised in the clearance of LPG from their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acility (MLIF). It was alleged that they manufactured LPG falling under Central Excise Tariff Heading 2711 1900 from the imported propane and butane at the Port without Registration as manufacturer and cleared on payment of duty from the warehouse by wrongly availing CENVAT credit of Rs.1,28,93,024/-. Consequently, show-cause notice was issued to them on 4.8.2015 for recovery of CENVAT credit of Rs.1,28,93,034/- along with interest and penalty. On adjudication, the demand was confirmed with interest and penalty. 3. At the outset, the learned advocate for the appellant has submitted that during the relevant period i.e., July 2014, they had imported LPG Propane and Butane against Bill of Entry No.6133796 dated 16.7.2014 and Bill of Entry No.6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Commissioner in the impugned order mentioned that the warehouse registration has been subsequently amended to include manufacturing of excisable goods at MLIF. 3.3 He has submitted that the activity of manufacture is undertaken at the MLIF location and not at the NMPT area as alleged. In terms of IS 4576:1999, the appellants are required to add 20 ppm of Ethyl Mercaptan before dispatch of the goods, thus, the LPG only after addition of Ethyl Mercaptan becomes excisable goods. He submits that to come within the scope of manufacture, twin test needs to be satisfied viz., (i) the process should amount to manufacture, and (ii) such products to be marketable. In support, he referred to the judgment of the Hon ble Supreme Court in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... galore vs. Vishal Precision Steel Tubes Strips Pvt. Ltd.: 2017 (349) ELT 686 (Kar.). Further, he has submitted that imposition of penalty and interest is not sustainable when the demand itself is bad in law. 4. The learned Authorised Representative for the Revenue reiterated the findings of the learned Commissioner. He has submitted that since the appellant has availed CENVAT credit prior to registration as a manufacturer under the provisions of Central Excise Act, 1944; therefore, CENVAT credit availed on CVD paid on imported Propane and Butane is irregular and not admissible. In support, he has relied on the decision of this Tribunal in the case of Showa India (P) Ltd. vs. CCE, Faridabad: 2012 (25) STR 152 (Tri.-Del.). 5. Heard both sides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n with the department as a condition precedent for claiming Cenvat credit is concerned, learned counsel appearing for both parties were unable to point out any provision in the Cenvat Credit Rules which impose such restriction. In the absence of a statutory provision which prescribes that registration is mandatory and that if such a registration is not made the assessee is not entitled to the benefit of refund, the three authorities committed a serious error in rejecting the claim for refund on the ground which is not existence in law. Therefore, said finding recorded by the Tribunal as well as by the lower authorities cannot be sustained. Accordingly, it is set aside. Thus, the appellants are entitled to avail CENVAT credit on the inputs v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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