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2015 (3) TMI 1086 - AT - Central ExciseWaiver of pre deposit - Denial of exemption claim - Held that:- While initially, when the appellant had started the manufacture of tubular poles in the year 2005, they had been allowed to avail of benefit of Notification No. 56/02-CE by treating their process as amounting to manufacture. It is only in view of Apex Court’s judgment dated 27/3/06 in the case of Hindustan Poles Corporation vs. CCE, Kolkata (2006 (3) TMI 2 - SUPREME COURT ), that the Additional Commissioner vide order-in-original dated 31/3/08 cancelled the appellant’s registration certificate and at the same time while rejecting the refund claim under Notification No. 56/02-CE for March and April 2006, also demanded Cenvat credit of ₹ 12,14,590/- in respect of inputs. - There is no dispute that the Apex Court in its subsequent judgment dated 28/3/08 in the case of Prachi Industries vs. CCE, Chandigarh (2008 (3) TMI 25 - Supreme court) reversed its earlier ruling in the case of Hindustan Poles Corporation vs. CCE, Kolkata. (supra) and has held that making tubular poles by joining duty paid price of different diameters by welding would amount to manufacture. In this background there would be no justification for imposition of penalty. - It is seen that the bulk of the duty demand of ₹ 61,74,218/- for the period from January 2012 to November 2012 and December 2012 to June 2013 is within normal limitation period. However, as held by Joint Commissioner, the appellant would also be entitled for Cenvat credit of ₹ 36,15,915/- and as such the net duty payable would be only ₹ 25,58,303 - this is not the case for total waiver - Partial stay granted.
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