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2015 (2) TMI 1076 - AT - Central ExciseWaiver of pre deposit - CENVAT Credit - Manufacture - appellant were clearing M.S. Profiles on payment of duty and were availing cenvat credit of central excise duty paid on M.S. Sheets - Held that:- Tribunal in the two orders in the cases of Sanjay Industrial Corporation (2003 (3) TMI 170 - CEGAT, MUMBAI) and Pioneer Profile Industries (2005 (12) TMI 420 - CESTAT, NEW DELHI) has held that the process of profile cutting of M.S. Plates and M.S. Sheets as per the design and drawings of the customer to make M.S. Profiles, Circles, Angles, etc. amounts to manufacture. Moreover, even if the Departments contention that the process undertaken by the appellant does not amount to manufacture is accepted, since admittedly the appellant have cleared the M.S. Profiles on payment of duty and the duty paid is more than the cenvat credit availed, the cenvat credit allegedly wrongly taken stands reversed and hence, there is absolutely no justification for demanding the allegedly wrongly taken cenvat credit once again. Rule 3(5) of the Cenvat Credit Rules, 2005 permits the clearance of the inputs as such on payment of an amount equal to the cenvat credit availed and if the Departments stand that the process does not amount to manufacture is accepted, the appellants activity would amount to clearing the cenvat credit availed inputs as such on payment of an amount which admittedly is not less than the cenvat credit availed. In view of the above, the impugned order is not correct and the appellant have strong case in their favour. Hence, the requirement of pre-deposit of duty demand, interest and penalty is waived for hearing of the appeals and recovery thereof is stayed - Stay granted.
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