TMI Blog2011 (6) TMI 484X X X X Extracts X X X X X X X X Extracts X X X X ..... SDR for Respondent Per: Shri Ashok Jindal, Member (Judicial) Today a miscellaneous application for early hearing of the application for restoration of appeal and the appeal itself are listed. On perusal of the records, it is observed that the application for restoration of appeal has already been disposed of vide Order No. M/41/11/SMB/C-IV dated 08.02.2011 by allowing the application for restoration of appeal. Therefore, this application has become infructuous and the same is dismissed as infructuous. 2. The appellants are in appeal against the impugned order for demand of duty on account of wrong availment of CENVAT credit on Furnace oil which has been used as fuel in their job-work activity. 3. The facts of the case are that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... H), Commissioner of Central Excise, Tirunelveli Vs. Vishnu Shankar Mills Ltd. reported in 2009 (247) ELT 31 (Mad), Commissioner of Central Excise, Kolkata-IV Vs. Kesoram Rayon reported in 2009 (238) ELT 222 (Cal) and Commissioner of Central Excise, Ludhiana Vs. Nestle India Ltd. reported in 2010 (250) ELT 341 (P H). He further submitted that the goods manufactured in job-work activity are not the exempted goods. Although they have cleared the job-worked goods without payment of excise duty but the principal manufacturers have cleared these goods after further processing on payment of duty. Therefore, the credit has been correctly availed. To support this contention, he relied on the decision of the Larger Bench of the Tribunal in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as well as in the job-work activity or not. It is settled law by the Apex Court in the case of Gujarat Narmada Fertilizers (supra) as cited by the learned SDR, I find that the issue has attained finality, therefore, the assessee is not entitled to take credit on furnace oil, which has been used in manufacture of exempted goods. 8. In alternate, I find that it is not disputed that the job-worked goods were cleared by the principal manufacturers on payment of duty. The only objection of the learned SDR is that it is not pleaded before the lower authorities. Therefore, the matter needs examination. In view of the above observation, I send back the matter to the original adjudicating authority to consider this aspect of this case. In case, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
