9911796707
TMI Blog2012 (10) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 blade/wire saw machines using advanced technology to square them by separating waste material. Squared up blocks are sawned for making slabs by using the gang saw machine or single/multi block cutter machine. There, the sawn slabs are further reinforced by way of filling cracks by epoxy resins and fiber netting. The slabs are polished on polishing machine and then slabs are further edge cut into required dimensions/tiles as per market requirement in perfect angles by edge cutting machine and multi disc cutter machines. Finally, the polished slabs and tiles are buffed by shiner. Petitioner is also engaged in the business of purchasing rough granite slabs and out of them manufacturing cut and sized polished ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner 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 12-5-2005 passed by the Assistant Commissioner, Central Excise Division, Udaipur, vide Order dated 31-8-2006 and the Order dated 12-5-2005 was set aside. The revision petition was preferred by the petitioner against the Order dated 26-9-2007, which was registered as Revision Petition No. 195/23/08-RA. The same has been dismissed vide Order dated 2-9-2009. 5. Petitioner has submitted that the Central Government could not have proceeded to reject the revision as the issue was with respect to the claim of rebate made by the petitioner after the decision of the Apex Court in Aman Marble Industries (P) Ltd.'s case (supra). Petitioner has also relied upon the decision in its own case of the Apex Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 said to be applicable, as the decision in the petitioner's own case of the Apex Court in Income Tax Officer, Udaipur v. M/s. Arihant Tiles & Marble's case (supra), is squarely attracted. He further submitted that in Income Tax Officer v. M/s. Arihant Tiles & Marble's case (supra) in the case of the assessee itself, the decision of the Apex Court in Aman Marble's case (supra) has been held to be not applicable. Learned counsel has submitted that in view of Cenvat Credit Rules, the vested right could not have been taken away. It was open to the petitioner to avail the benefit of Cenvat credit and it was given. He has further relied upon the decision of Commissioner of Central Excise pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arlance 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 original identity continued. And this position was further reiterated as follows : (SCC pp. 147-48 para 16) It is also not possible to accept that excavation of stones and thereafter cutting and polishing them into slabs resulted in any manufacture of goods. 5. In the light if this decision we have no hesitation in holding that the activity carried on by the appellant does not amount to manufacture. We set aside the order passed by the Tribunal and allow this appeal." 11. In our considered opinion, the case of Income Tax Officer v. M/s. Arihant Tiles & Marbles (P) Ltd.'s case (supra) cannot be pressed into service as the same is quite distinguishable. Thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 hereinabove, the judgment of this Court in Aman Marble Industries Pvt. Ltd. was not required to construe the word "production" in addition to the word "manufacture". One has to examine the scheme of the Act also while deciding the question as to whether the activity constitutes manufacture or production. Therefore, looking to the nature of the activity stepwise, we are not (sic) produce any new product whereas it was argued on behalf of the assessee that it did produce a distinct new product. The view expressed by the High Court that the activity in question constituted "production" has been affirmed by this Court in Sesa Goa's case saying that the High Court's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned 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 rendered by the Apex Court in Aman Marble's case (supra) on 18-9-2003, the Government of India in its order (P/17), dated 2-9-2009 has found on facts that no stock of input was lying with the petitioner and the finished goods became exempted after the pronouncement of judgment of the Apex Court in the case of M/s. Aman Marbles in 2003. The following findings have been recorded in the impugned order by the Govt. of India : "11. The ratio of these judgments is not applicable in the instant case as there was no stocks on input lying unutilized with the applicant and the finished goods became exempted after the pronouncement of judgment of Hon'ble Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escue 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 Marble (supra), since the process does not amount to process of manufacture, the aforesaid action cannot clothe the entitlement to the petitioner to claim the Cenvat credit, that would amount to violating the mandate of the Apex Court. 16. It was lastly submitted on behalf of the petitioner relying upon the decision of the Assistant Commissioner, Central Excise Division dated 12-5-2005 that benefit had been granted of Cenvat credit considering decision in Aman Marble (supra). The submission has no legs to stand, as the period in question was before the decision rendered in Aman Marble (supra) as noted in our order itself. Moreover, or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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