TMI Blog2015 (12) TMI 939X X X X Extracts X X X X X X X X Extracts X X X X ..... iginal dated 31.03.2008 had passed an order holding that its activity does not amount to manufacture, in view of Apex Court’s judgment in the case of Hindustan Poles Corporation (2006 (3) TMI 2 - SUPREME COURT ) and on this basis, had ordered cancellation of the central excise registration and had also confirmed the cenvat credit demand alongwith interest. It is also seen that this order dated 31.03.2008 had been passed by the Additional Commissioner after the Apex Court’s judgment dated 28.03.2008 in the case of Prachi Industries (2008 (3) TMI 25 - Supreme court) wherein the Apex Court after distinguishing its earlier judgement in the case of Hindustan Poles Corporation, had taken a contrary view holding that joining of duty paid MS pipes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had obtained Central Excise Registration and was availing Notification No.56/2002-CE i.e paying duty on the finished products to the extent possible through cenvat credit available at the end of the month and if any duty was still required to be paid, the same was paid through PLA and this duty paid through PLA was refundable under this notification. 2. The Apex Court by judgement delivered on 27th March, 2006 in the case of Hindustan Poles Corporation vs. CCE, Kolkata reported in 2006 (196) ELT 400 (S.C.) held that the activity of merely joining pipes of different diameters to obtain a tubular pole of the desired length would not amount to manufacture, as no goods with different name, characteristic and usages have emerged. Relying upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon the Apex Court s judgement in the case of Prachi Industries (Supra), it has been held that joining of pipes one with other of different diameters by welding to obtain a pole of the desired length would amount to manufacture. The SCN was adjudicated by the Commissioner vide Order-in-Original dated 15.05.2014 by which he confirmed the above mentioned duty demand alongwith interest and imposed penalty of ₹ 2,05,648/- on them. Besides this he also held that the appellant would be eligible for input duty cenvat credit. Against this order, this order of the Commissioner, this appeal has been filed alongwith stay applications. 5. Heard both the sides in respect of stay application. 6. Shri. R. Gupta, Consultant, the ld. Counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the appeal and recovery thereof may be stayed. 7. Shri Ranjan Khanna, the ld. DR Defended the impugned order by reiterating findings of the Commissioner and pleaded that the appellant s activity would amount to manufacture in view of the Apex Court s judgement in the case of Prachi Industries (supra), that in para 20 of the Apex Court judgment in the case of Prachi Industries, its earlier judgement in the case of Hindustan Poles Corporation vs. CCE, Kolkata (Supra) has been distinguished, that the duty demand for the period from July, 2012 to June 2013 raised by the SCN dated 07.08.2013 is within time, that when the activity of the appellant has been held to be manufacture and the duty demand is within time, there is no infirmity in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Hindustan Poles Corporation, had taken a contrary view holding that joining of duty paid MS pipes of different diameters by welding and swaging would amount to manufacture. 10. In view of Apex Court s judgment in the case of Prachi Industries (supra) which holds the field at present, the appellants activity would amount to manufacture and there is no dispute that the duty demand of ₹ 34,57,913/- is within time. The Commissioner while confirming the duty demand in the impugned order has also allowed the cenvat credit which according to the appellant is ₹ 23,59,833/- and thus, only the differential amount of ₹ 11.00 Lakhs may be payable by the appellant through PLA which would be exempt only if the benefi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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