TMI Blog2011 (3) TMI 813X X X X Extracts X X X X X X X X Extracts X X X X ..... parkar, President (Oral)]. Since the common questions of law and facts arise in both the matters, they were heard together and are being disposed of by this common order. 2. Hoard the learned Advocate for the appellants and DR for the respondent. 3. The Stay application No. 1421 of 2010 has been filed in Excise Appeal No. 1388 of 2010 which arises from the order passed by the Commissioner (Appeals), New Delhi dated 26-2-2010 whereby the appeal filed by the appellants against the order of the adjudicating authority has been dismissed. The Additional Commissioner, New Delhi by his order dated 30-1-2009 had confirmed the demand and ordered recovery of cenvat credit amounting to Rs. 1368021/- arising out of show cause notice dated 21-8-2007 in relation to the period from January 2006 to June 2007 and sum of Rs. 11,91,836/- arising out of show cause notice dated 11-6-2008 in relation to the period from July 2007 to April 2008, alongwith interest and had imposed equal amount of penalty. 4. The Stay Application No. 1422 of 2010 has been filed in Excise Appeal No. 1389 of 2010 which arises from order passed by the Commissioner (Appeals), New Delhi dated 26-2-2010 by which the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment of duty does not amount to reversal of the credit and the same also amounts to allowing the buyers of the final product to avail credit which he is not entitled to avail. He further submitted that the orders also disclosed that the appellants were also aware of the fact that the process does not amount to manufacture in view of the decision of the Apex Court in Metlex (I) Pvt. Ltd. v. CCE, New Delhi reported in 2004 (165) E.L.T. 129. 7. At this stage while this order was being dictated, the learned Advocate for the appellants sought leave to rely upon a decision of the Gujarat High Court in the matter of CCE C Surat-III v. Creative Enterprises reported in 2009 (235) E.L.T. 785 (Guj.). 8. There is no dispute that the process undertaken by the appellants is the process of lamination and, therefore, it does not amount to manufacture in terms of Section 2(f) of the Central Excise Act and there is a clear finding to that effect in the order passed by the adjudicating authority. Nothing has been brought to our notice to counter the said finding nor it is the contention of the appellants that the same is not borne out from the record. The Apex Court in Metlex case (supra) has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned and, therefore, the expression for any other reason cannot be read forgetting the principle of ejusdem generis. Having so read, question of allowing the appellants to avail the cenvat credit on the inputs which were admittedly procured for being utilized in the process of lamination, by no stretch of imagination can be brought within the meaning of the said expression under the said Rule. 12. As regards the registration of the appellants under the Excise Act is concerned, undisputedly, the same is in terms of the Rule 9 of the Central Excise Rules, 2002. Sub-rule (1) thereof provides every person, who produces, manufactures, carries on trade, holds private store-room or warehouse or otherwise uses excisable goods, shall get registered. The proviso provides that a registration obtained under rule 174 of the Central Excise Act, 1944 or rule 9 of the Central Excise (No. 2) Rules, 2001 shall be deemed to be as valid as the registration made under the said rule. Sub-rule (3) of Rule 9 provides that the registration under sub-rule (1) shall be subject to such conditions, safeguards the procedure as may be specified by notification by the Board. The provision of law comprised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Rules, 2002 is issued, the buyer industry or dealer is able to avail of cenvat credit of such duty paid. Thus, I observe that by issuing invoices under Rule 11 of the Central Excise Rules, 2002 in respect of impugned goods not liable to central excuse duty, the party has illegitimately passed on and made available cenvat credit to their buyers by paying the duty on goods cleared by it, which the party was not required to pay. Therefore, I hold that the party s plea in this regard that the payment of duty under Rule 11 may be treated as reversal is not admissible. At this stage, it may be mentioned here that as per Indian Constitution, not a penny can be collected less or more than what is due in accordance of law. Therefore, by paying the duty on goods cleared by them, which they were not required to pay, the party has gone against the basic provision of Constitution. I hold clearly that they were not required to pay duty on the goods cleared by them . 14. As regards the claim of bar of limitation, undisputedly, the same was not raised before the adjudicating authority or before the Commissioner (Appeals). The point of limitation is not a pure question of law, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in Creative Enterprises is concerned, the same was passed in the peculiar facts where the Tribunal in its order which was under challenged by the department before the Gujarat High Court had observed thus :- We have perused the records and have considered the submissions made by both sides. The present order is clearly unjust and cannot be allowed to stand. The appellants are right in their contention that the finding regarding manufacture applies equally to levy of duty as well as eligibility to modvat credit. If there was no manufacture, there could be no payment of duty also. There is no dispute that the appellants had paid a higher amount of duty on the goods than the credit taken. If the credit taken was not eligible, what was required was only to adjust the duty paid against that credit . 18. Having noted the above observations of the Tribunal, the Hon ble High Court proceeded to hold thus :- When one goes through 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 ou ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
