TMI Blog2012 (10) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... it petitions have been preferred questioning the order dated 2-9-2009 passed by the Govt. of India in revision and also for quashing the Order dated 25-4-2006 passed by the Commissioner, Central Excise, the Order dated 30-4-2007 passed by the Dy. Commissioner, Central Excise and the Order dated 26-9-2007 passed by the Commissioner (Appeals) in the matter of claim of Cenvat credit by the petitioner with respect to marble and granite. Petitioner has claimed that the process of cutting and polishing the granite and marble amount to manufacturing process falling within Chapter 25 of the Central Excise Tariff Act, 1985, hereinafter referred to as the Act of 1985 . 2. The facts in all the writ petitions are similar, therefore, the facts in brief from one of the writ petitions viz., D.B. Civil Writ Petition No. 11870/2009 are being noted. It is averred that petitioner is a private limited company and is engaged in the business of sawing of marble blocks into slabs and tiles for sale in both indigenous and foreign market. The marble blocks are excavated by the mine owners in raw uneven shapes, which have to be properly sorted out and marked. Such blocks are then processed on single blad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner was paying excise duty on foreign consumption. The position continued even after 18-9-2003. The petitioner presented a claim for refund of amount of Rs. 4,37,685/- covering the period of July 2004. The application was granted vide Order dated 12-5-2005 (P/8) passed by the Assistant Commissioner, Central Excise Division, Udaipur. However, the Commissioner Central Excise, vide his Order dated 25-4-2006 reviewed the Order dated 12-5-2005 passed by the Assistant Commissioner holding the same to be illegal. Simultaneously, a show cause notice was issued by the Deputy Commissioner on 9-5-2006 calling upon the petitioner to show cause as to why an amount of Rs. 4,37,229/- be not recovered. Petitioner submitted reply to the show cause notice dated 9-5-2006 (P/11). The Deputy Commissioner, Central Excise vide this Order dated 30-4-2007 confirmed the demand made by the show cause notice dated 9-5-2006. Being aggrieved by the order dated 30-4-2007, the appeal was preferred before the Commissioner (Appeals), who by order dated 26-9-2007 rejected the appeal filed by the petitioner. The Commissioner (Appeals) allowed the appeal filed by the department as against the Order dated 12-5-200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vail the same. The rebate of Rs. 4,37,685/- is not admissible. Petitioner was not enjoying the benefit of excise thereafter in respect of marble slabs and tiles. The decision in the case of Samtel India Ltd. v. C.C.E., (2003) 11 SCC 324 = 2003 (155) E.L.T. 14 (S.C.) is not applicable in the instant case. The item in the instant case was non-excisable in view of the decision of the Apex Court in Aman Marble (supra), thus, the balance of credit lying on 17-9-2003 stood lapsed. Petitioner could not have utilized the credit towards payment of duty on other goods i.e. granite slabs in the instant case, which could not have been exported in order to encash credit, which was not admissible to them. Petitioner did not submit any evidence that they exported marble slabs and tiles after 18-9-2003. The process of cutting marble slabs and tiles does not amount to manufacture. 7. Mr. M.S. Singhvi, learned Sr. Advocate, has submitted that in view of the decision of the Apex Court in Income Tax Officer, Udaipur v. M/s. Arihant Tiles Marble s case (supra) in which the process has been held to be of manufacture or production. Consequently, the decision in Aman Marble s case (supra) cannot be sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Stone Industries, 2000 WLC (SC) Civil 535 : (2000) 6 SCC 141, in which it is laid down that excavation of stones from a mine and thereafter cutting them and polishing them into slabs did not amount to manufacture of goods. The Apex Court in Aman Marble has laid down thus : 4. In Rajasthan SEB v. Associated Stone Industries, such a question fell for consideration before the Court although on a different context and this Court held as follows : (SCC p. 146, para 12). This apart, excavation of stones from a mine and thereafter cutting them and polishing them into slabs did not amount to manufacture of goods. The word manufacture generally and in the ordinary parlance in the absence of its definition in the Act should be understood to mean bringing to existence a new and different article having a distinctive name, character or use after undergoing some transformation. When no new product as such comes into existence, there is no process of manufacture. Cutting and polishing stones into slabs is not a process of manufacture for the obvious and simple reason that no new and distinct commercial product came into existence as the end product still remained stone and thus its ori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Marble Industries Pvt. Ltd. (supra) also has no application to the facts of the present case. One of the most important reasons for saying so is that in all such cases, particularly under the Excise law, the Court has to go by the facts of the activity undertaken by an assessee. Mere extraction of stones may not constitute manufacture. Similarly, after extraction, if marble blocks are cut into slabs per se will not amount to the activity of manufacture. In the present case, we have extracted in detail the process undertaken by each of the respondents before us. In the present case, we are not concerned only with cutting of marble blocks into slabs. In the present case we are also concerned with the activity of polishing and ultimate conversion of blocks into polished slabs and tiles. What we find from the process indicated hereinabove is that there are various stages through which the blocks have to go through before they become polished slabs and tiles. In the circumstances, we are of the view that on the facts of the cases in hand, there is certainly an activity which will come in the category of manufacture or production under Section 80-IA of the Income Tax Act. As stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The dictum of the Apex Court is in the context of Section 80-IA of the Income Tax Act but considering the definition of manufacture in the Excise Act in the case of Aman Marble Industries (P) Ltd. s case (supra) and particularly in view of the fact that the decision in Aman Marble has not been held to be bad law by their lordships of the Apex Court in Income Tax Officer v. M/s. Arihant Tiles Marble s case (supra) squarely attracted to the facts of the instant case. The decision in the case of Income Tax Officer v. M/s. Arihant Tiles Marbles (supra) cannot be said to be applicable. 13. Coming to the second submission raised by Mr. M.S. Singhvi, learned Sr. Advocate, that in view of the decision in Eicher Motors Ltd. v. Union of India, (1999) 2 SCC 361 = 1999 (106) E.L.T. 3 (S.C.), the petitioner was entitled to avail the benefit of Cenvat credit, we are of the view that no assistance can be derived from Eicher Motors Ltd. s case (supra), as the credit in the aforesaid decision was utilized on input, which was lying in the factory on 16-3-1995 either as parts or contained in finished products lying in stock on 16-3-1995. In the instant case, when the decision has been render ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Rules, 2002. So, Govt. finds no infirmity in the impugned order-in-appeal to interfere with. 14. In view of the aforesaid, we find that it was not open to the petitioner to avail Cenvat credit and there is no question of taking away any vested right in view of the aforesaid finding with respect to stock positions as on 18-9-2003. Coming to next submission made by Mr. M.S. Singhvi, learned Sr. Advocate, based on the Cenvat Credit Rules, 2004, we are of the considered opinion that in view of the pronouncement of the Apex Court in Aman Marble s case (supra) after 18-9-2003, the Rule 4 of the Cenvat Credit Rules cannot come to the rescue of the petitioner, as the process in question itself does not amount to process of manufacture within the purview of Excise Law and Cenvat Credit Rules, 2004, the Rule 4 is inapplicable. Thus, the reliance upon Rule 4 of the Rules of 2004 is of no avail. 15. It was also submitted on behalf of the petitioner that Cenvat credit was to be utilized because the excise duty was recovered even after decision in Aman Marble s case (supra) on marble slabs. We are of the considered opinion that in view of the decision of the Apex Court in Aman Mar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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