TMI Blog2012 (12) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... nce undisputedly the appellant have paid duty on 25 kg. pack, which is more than the cenvat credit availed the payment of duty has to be treated as reversed of cenvat credit as the Department cannot proceed to demand cenvat credit again in respect of input - Decided in favour of assessee. - Appeal No. 3986 of 2010-SM - Final Order No. A/55014/2013-SM(BR) - Dated:- 24-12-2012 - Sh. Rakesh Kumar, J. For the Appellant: Sh. Vijay Kumar, Advocate For the Respondent: Sh. R. K. Mathur, DR JUDGEMENT Per: Rakesh Kumar: The facts leading to this appeal are in brief as under. 1.1 The appellant are manufacturer of zinc oxide and lead oxide. Besides this, they also import a chemical called cerium chloride in respect of which in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Assistant Commissioner vide order-in-original dated 12.11.2009 confirmed the cenvat credit of Rs. 2,92,737/- alongwith interest and also imposed penalty of equal amount on the appellant. On appeal to Commissioner (Appeals) this order of the Assistant Commissioner was upheld vide order-in-appeal dated 18.1.2010. Against this order of the Commissioner (Appeals) this appeal has been filed. . Heard both the sides. 3. Shri Vijay Kumar, ld. Counsel for the appellant, pleaded that cerium chloride is a chemical classifiable as inorganic chemical under heading 28469090 of the Central Excise Tariff; that in terms of the provisions of chapter note 9 to Chapter 28 of the tariff, in relation to the products this chapter, labelling orrelabelling of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de; and that in view of the above submissions, the impugned order is not sustainable. 4. Shri R.K. Mathur, ld. DR, defending the impugned order while reiterating the findings of the Commissioner (Appeals) emphasised that the repacking of cerium chloride from 1 MT to 25 kg. pack cannot be called retail packing, that these packs are not sold in retail to ultimate consumers, that in view of this the process undertaken by the appellant does not amount to manufacture; that the decision of Nestle India is not applicable to the facts of this case; that since the process undertaken by the appellant is not manufacture, the cenvat credit in question, was not admissible. He, therefore, pleaded that there is no infirmity in the impugned order. 5. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount to manufacture. Obviously, since the cerium chloride falls under chapter 28 the above chapter note would be applicable. The imported cerium chloride in 1MT bulk pack is repacked into 25 kg. packs which are relabelled. In my view the process undertaken by the appellant would amount to manufacture irrespective of whether 25 kg. pack are purchased by the ultimate consumers or by the dealers for repacking into further smaller pack as the Tribunal in case of Nestle India Ltd. (supra) has held that the term consumer in similar chapter note 11 of Chapter 29 also includes industrial consumer and not merely retail consumer. In view of this I hold that the process undertaken by the appellant amounts to manufacture and hence the cenvat credit has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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