TMI Blog2008 (10) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Appellant. Ms. Joy Kumari Chander, JCDR, for the Respondent. [Order per: T.K. Jayaraman, Member (T)]. - These appeals have been filed against the following impugned orders. The details of the orders are given below: Sl. No. Appeal No. Impugned Order-in-Appeal No. Amount involved 1. E/68/2005 89/2007-C.E. dated 30-10-2007 Rs 1,60,000/- u/s 11AC and Rs. 5,000/- under Rule 25 2. E/1020/2005 91/2005-C.E. dated 12-9-2005 Rs. 6,28,850/- u/s 11B 2. Mr. Rajesh C. Kumar, the learned Advocate appeared on behalf of the appellant and Ms. Joy Kumari Chander, learned JCDR, for the Revenue. 3. We heard both sides. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases the contention of the department is that the process carried out by the appellants in their factory on the returned goods does not amount to manufacture. Once the process does not amount to manufacture, they had necessarily to pay duty equal to the amount which they had reversed. Rule 16 of the Central Excise Rules is reproduced be low: RULE 16. Credit of duty on goods brought to the factory. —(1) Where any goods on which duty had been paid at the time of removal thereof are brought to any factory for being re-made, refined, re-conditioned or for any other reason, the assessee shall state the particulars of such receipt in his records and shall be entitled to take Cenvat credit of the duty paid as if such goods are received as in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view that the process carried out by the appellants do not amount to manufacture. 6. On a very careful consideration of the issue, we find that in the case of Enfield India Ltd. v. CCE, Madras - 1996 (88) E.L.T. 773 (Tri.) it is held that change or upgradation of the machine or change of some parts cannot be taken to be a manufacture of a new product for excise purpose. Further, the Commissioner (Appeals) in one of the impugned orders has given the following reasoning for holding that the process carried out by them does not amount to manufacture. 6.1 Findings rendered in Order-in-Appeal No. 91/2005-C.E. dated 12-9-2005, is reproduced herein below: "2. The issue to be decided in this case is whether the operations carried on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and certain modifications are made in the stator winding, rotor winding and later it is cleared again. These modifications themselves by no stretch of imagination can be called manufacture. Manufacture means a new product come into existence. The stator and rotor are already there. So making certain modifications in them in our view would not amount to manufacture. Once it is considered that the process does not amount to manufacture, then the appellants should pay an amount equal to the credit taken by them it cannot be less. Therefore, the demand of differential duty in one appeal is correct. In the second appeal the refund claim is rejected. In our view it is correct and legal. However, since the issue is one of interpretation, the pena ..... X X X X Extracts X X X X X X X X Extracts X X X X
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