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2015 (10) TMI 154 - AT - Central ExciseDenial of refund claim - payment of duty whereas it was held that process like cutting, drilling would not amount to manufacture - Held that:- When the Order in Dodsal's case [2000 (8) TMI 93 - SUPREME COURT OF INDIA] was within the knowledge of the department while order of dismissal of their appeals was passed by Apex Court in Civil Appeal [2006 (11) TMI 633 - SUPREME COURT], Revenue did not make any mention before the Hon'ble court that its appeals may also be tagged with the matter in Collector of Central Excise, Jaipur Vs Man Structurals Ltd. reported in [2001 (4) TMI 87 - SUPREME COURT OF INDIA] referred to larger bench. In absence of any mention by Revenue, the judgment of the Hon'ble Supreme Court in Civil Appeal reached to finality. This can be said following the ratio laid down by apex court in Kunhayahmmed Vs State of Kerala reported in [2000 (7) TMI 67 - SUPREME Court] explaining the doctrine of merger. Accordingly, in view of the ratio laid down therein, Revenue has no scope further to agitate the self same issue against the appellant on self same fact contrary to the doctrine of res judicata. Therefore, it can unambiguously be stated that the activity carried out by the appellant does not amount to manufacture and goods coming out of the activity carried out by it is not classifiable under Heading 7308 2011 - Refund allowed. CENVAT credit shall only be admissible on inputs used in any other activity resulting in duty liability other than the impugned activity. There shall not be levy of interest or penalty for no levy of duty ordered by this order. Reversal of input credit if any required under law be made within a month of receipt of this order and learned Adjudicating Authority informed as to the same within two weeks thereof. - refund shall be made in accordance with law subject to verification of the deposit particulars. - Decided in favour of assessee.
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