TMI Blog2009 (9) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... 1A of the Central Excise Act, 1944, and has imposed penalty of Rs. 40 lakhs. 3. The above demand of duty has been made on the basis that the appellants were not entitled to avail cenvat credit in relation to the inputs utilized for the final product as the final product was not dutiable in view of the decision of the Apex Court in Metlex (I) Pvt. Ltd. v. C.C.E., New Delhi reported in 2004 (165) E.L.T. 129. 4. Learned Advocate appearing for the appellants submitted that all throughout the appellants had been paying duty on the finished products manufactured by them in relation to the process of lamination and metalisation on the polyester film and therefore, the appellants were availing credit in relation to the duty paid inputs utilized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Laminated Packagings (P) Ltd. case has taken the view that lacquering/metallising of polyester film does not amount to manufacture. 7. Learned Advocate for the appellants has also brought to our notice that since 2008 onwards, Chapter Note 16 to Chapter 39 clearly states that in relation to the provision of the Headings, 3920, 3921, the process of metalization or lamination or lacquering shall amount to manufacture. The Chapter Heading 3920 refers Other plates, sheets, film, foil and strip, of plastics, non-cellular, and not re-inforced, laminated , supported or similarly combined with other materials . Chapter Heading 3921 refers to other plates, sheets, film, foil and strip, of plastics . 8. It cannot be disputed that the Apex Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Metlon India was squarely based on the facts of the said case wherein there was no occasion to go into the issue as to whether the process involved was manufacture or not. As against this the Apex Court in Empire Industries Ltd. case had clearly ruled that It is well settled that one cannot absolutely make a thing by hand in the sense that nobody can create matter by hand, it is the transformation of a matter into something else and that something else is a question of degree, whether that something else is a different commercial commodity having its distinct character, use and name and commercially known as such from that point of view is a question depending upon the facts and circumstances of the case . In other words, it would depend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lue in terms of the Rule 6(3)(b) of the Cenvat Credit Rules, 2004. Considering the facts that the appellants had been paying duty and only in that regard claiming the benefit of cenvat credit available in terms of the provisions of law in relation to the utilization for manufacture of final product, we do not find any prejudice to the interest of the Revenue if stay is granted in the matter hand. It is also to be noted that nearly after a gap of one year already the Revenue authority has explained that the process of lamination as well as metallisation amounts to manufacture and the Chapter note 16 of Chapter 39 is very clear in that regard. In the circumstances, prima facie case having been made out, the execution of the impugned order is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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