TMI Blog2024 (4) TMI 860X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in appellant s own case in SLP (CE) No. 34310-34311/2011 wherein two orders were issued by the Hon ble Supreme Court dated 14.10.2011 and 08.11.2011. In view of this position unless it is decided that the activity is a trading activity or otherwise the consequential liability of proportionate credit in respect of service tax cannot be concluded. Moreover the appellant have vehemently argued that the quantification of proportionate credit is incorrect, this is also reason that the matter needs to be reconsidered as regard the correct quantification of the demand. In this position the entire matter on all the issues need to be reconsidered only after the outcome of the Hon ble Supreme Court judgment in the appellant s SLP pending. The imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tubes and flaps is taken at the factory. Thereafter the tyre, tube and flap are cleared as a set to the OE Manufacturer. In the process, the tube and flap are inserted into tyre, the tube is mildly inflated and thereafter the tyre is strapped at three places to prevent the tube and flap from falling out. The set thereafter is used by the OE Manufacturer in the manufacture of the automobiles in what is now popularly known as a just in time concept. Therefore while clearing the tyre, tube and flap as a set to the OE Manufacturer, duty is again paid on all the three items namely tyre, tube and flap and the same are cleared under the Appellant's invoice / invoices which will clearly show the duty paid on the tyre manufactured by the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be taken for calculating the proportionate Cenvat credit. Therefore to that extent there is an apparent mistake in quantifying the amount of demand. 2.1 He submits that the show cause notice proceed from the erroneous presumption that receipt of tubes and flaps and clearances thereafter to their depot after process under taken in respective plants pursuant to receipt of the tube and flap of unpacking, insertion into tyre, strapping of the tyre and clearance of the tyre, tube and flap as set is a trading activity, this is fundamentally erroneous. He submits that the very same issue that whether such activity is manufacture or trading activity is pending consideration before the Hon ble Supreme Court in SLP (CE) No. 34310-34311/2011 therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdingly proportionate credit is required to be reversed. We find that the activity of selling the tyre duly fitted with tube and flap whether a trading activity or otherwise is pending before the Hon ble Supreme Court in appellant s own case in SLP (CE) No. 34310-34311/2011 wherein two orders were issued by the Hon ble Supreme Court dated 14.10.2011 and 08.11.2011. In view of this position unless it is decided that the activity is a trading activity or otherwise the consequential liability of proportionate credit in respect of service tax cannot be concluded. 4.1 Moreover the appellant have vehemently argued that the quantification of proportionate credit is incorrect, this is also reason that the matter needs to be reconsidered as regard t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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