9911796707
TMI Blog2011 (3) TMI 813X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 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 appeal of the appellants against the order of the adjudicating authority has been dismissed. The Additional Commissioner, New Delhi vide his order dated 30-1-2009 had confirmed the demand and ordered recovery of cenvat credit to the tune of Rs. 14,11,270/- arising from show cause notice dated 2-7-2007 in relation to the period from January, 2006 to April 2007 alongwith interest and equal amount of penalty. 5. Learned Advocate appearing for the appellants drawing our attention to Rule 3(4) of the Cenvat Credit Rules, 2004 and Rule 16 of the Central Excise Rules,2002 submitted that the credit sought to be availed in relation to the duty paid on inputs which were used in the manufacture of the final product was already utilized for paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cess 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 already held that process of lamination does not amount to manufacture. 9. As regards Rule 3(4) of the Cenvat Credit Rules, 2004, it pertains to the method of utilization of the credit availed under the said Rules. Clause (a) of sub-rule (4) of Rule 3 provides that the cenvat credit may be utilized for payment of any duty of excise on any final product. It apparently discloses that the cenvat credit which is availed by the manufacturer in accordance with the provisions of law can certainly be utilized for payment of duty of excise on any final product. That does not mean that any amount which is claimed by the manufacturer as a cenvat credit that can be utilized for payment of duty on final product. It is only the cénvat cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll 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 under Rule 9 or under any other provision nowhere provides that moment a person gets the registration under the Central Excise Rules, he would be entitled for all the benefits available under the excise law and rules made thereunder without complying with the conditions attached to availability of such benefit. The manufacturer is entitled to claim the benefit of cenvat credit subject to the conditions laid down under the Rules prescribed for availing such credit and not otherwise. Being so, merely because the appellants had obtained registration that did not entitled them to avail credit on inputs which are not used for manufacture of the final dutiable product. 13. As rightly observed by the adjudicating authority that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 is a mixed question of law and facts. A party seeking to raise such an issue has to raise the same at the earliest available opportunity so that the opposite party gets fair opportunity to counter the same by placing necessary materials on record. Once the appellants has not raised the issue before the adjudicating authority, it is obvious that the department had no such opportunity to counter the same by placing necessary materials on record. It is too late for the appellants to raise such an issue and that to in the miscellaneous proceedings. 15. As regards financial hardship, admittedly, the appellants have not produced any material on record to justify the claim of the financial hardship. As regards orders passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 out 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 is no question of levy of duty and duty is levied, modvat credit cannot be denied by holding that there is no manufacture". 19. It was in the above circumstances, the matter was disposed of by the Gujarat High Court. There was no broad principle of law as such and certainly no issue as sought to be canvassed on behalf of the appellants in the case in hand was decided by the High Court. 20. Needless to say that all the above observations are prima-facie observations for the purpose of deciding the stay application in the matter. 21. In the facts and circumstances of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
