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2018 (9) TMI 1575 - AT - Central ExciseManufacture - activity of inspection and sample testing - Rule 16 of Central Excise Rules 2002 - removal of inputs as such - non-maintenance of separate records - sub-rule 5 of Rule 9 of Cenvat Credit Rules, 2004 - willful misstatement of facts - penalty. Whether inspection, testing and loading of software on the imported IFWT-Telephone Instruments, before the clearance by the assessee, amounts to manufacture? - Held that:- In case, the Revenue takes a stand that the activity undertaken by appellant does not amount to manufacture, the assessee succeeds in the earlier appeal as where the process do not amount to manufacture, the duty paid by the appellant needs to be treated as a deposit and requires to be refunded as the appellants have shown that the same is not passed on - Revenue cannot change the goal posts and have two different approaches to the same issue for different periods more so when the facts are identical - In the interest of Justice and equity, the issue requires to go back to the original adjudicating authority - Matter on remand. Whether the credit availed on the Power Supply Units, in respect of which it has been alleged that proper accounts have not been maintained, is factually correct, if not whether Cenvat credit is allowable? - Held that:- Prima facie the appellants have made out a case that they have maintained record pertaining to the receipt, storage, usage and clearance of the power supply unit. It is seen that assessee’s own records were taken as an evidence for arriving at the demands raised in the show-cause notice - on this issue also the matter required to go back to the original adjudicating authority for a proper appreciation of records maintained by the appellants. Appeal allowed by way of remand.
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