TMI Blog2011 (1) TMI 738X X X X Extracts X X X X X X X X Extracts X X X X ..... the inputs, the cenvat credit thereof being not available, his final product is exempt from payment of duty, yet he gets such reimbursement by allowing to avail the credit on the ground that he pays the duty on final payment product which ultimately is reimbursed by the buyer and at the same time retain the same, while also avails the cenvat credit on inputs - Decided against the assessee by way of direction to deposit the demand - E/1569/2010 - 257/2011-EX(PB) - Dated:- 28-1-2011 - Justice R.M.S. Khandeparkar, Shri Rakesh Kumar, JJ. REPRESENTED BY : Shri R. Santhanam, Advocate, for the Appellant. Shri V. Choudhary, DR, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President (Oral)]. Heard the learned Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court in the matter of CCE Customs, Surat-III v. Creative Enterprises reported in 2009 (235) E.L.T. 785, submitted that the facts of the case in hand were similar to that of Creative Enterprises before the Hon ble Gujarat High Court and, therein it has been clearly ruled that if the activity of the assessee does not amount to manufacture but is subjected to levy of duty and the same is paid by utilizing the credit availed, no grievance could be made about credit availed during the period during which such duty is paid by utilization of such credit. Applying the said decision to the facts of the case according to the learned Advocate the authority erred in demanding the amount. The contention is sought to be controverted on behalf of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of the first appellate authority, it is apparent that the respondent has been held to be a manufacturer as defined in Section 2(f) of the Central Excise Act, 1944. The appellate authority has taken into consideration the activities carried on by the respondent-assessee, the Tribunal is justified in holding that if the activity of the respondent-assessee does not amount to manufacture there can be no question of levy of duty, and if the duty is levied, modvat credit cannot be denied by holding that there is no manufacture . 7. The above ruling was given by taking note of the facts of the case as were assessed by the Tribunal as under :- We have perused the records and have considered the submissions made by both the sides. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to avail the same. This way the chain of cenvat credit is continued even though the statute does not permit the same on account of the product being non-dutiable. Learned Advocate further contends that the appellants would not necessarily avail such credit. 9. Indeed once the manufacturer who is not entitled in terms of the provision of law to get reimbursement for the duty amount paid by him for the inputs, the cenvat credit thereof being not available, his final product is exempt from payment of duty, yet he gets such reimbursement by allowing to avail the credit on the ground that he pays the duty on final payment product which ultimately is reimbursed by the buyer and at the same time retain the same, while also avails the cenvat c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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