TMI Blog2015 (10) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... therein, Revenue has no scope further to agitate the self same issue against the appellant on self same fact contrary to the doctrine of res judicata. Therefore, it can unambiguously be stated that the activity carried out by the appellant does not amount to manufacture and goods coming out of the activity carried out by it is not classifiable under Heading 7308 2011 - Refund allowed. CENVAT credit shall only be admissible on inputs used in any other activity resulting in duty liability other than the impugned activity. There shall not be levy of interest or penalty for no levy of duty ordered by this order. Reversal of input credit if any required under law be made within a month of receipt of this order and learned Adjudicating Authority informed as to the same within two weeks thereof. - refund shall be made in accordance with law subject to verification of the deposit particulars. - Decided in favour of assessee. - E/197 to 206/2009, E/S/41228 to 41240/2014 and E/Misc./40053 to 40065/2015, E/40978 to 40990/2014, E/41368 & 41369/2013, E/1229/2004 - - - Dated:- 26-2-2015 - D N Panda, Member (J) And R Periasami, Member (T) For the Appellant : Mr P C Anand, FCA, Consul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 45, 73, 317/- C.No.IV/02/278/08-Review dt.28.5.08 07/2009-CE(SLM) dt.13.1.2009 E/S/133/09 in E/200/09 378/09 dt.14.5.09 1.4.1997 to 31.3.1998 41/08-RF dt.22.4.08 45, 82, 083/- C.No.IV/02/278/08-Review dt.28.5.08 08/2009-CE(SLM) dt.13.1.2009 E/S/134/09 in E/201/09 379/09 dt.14.5.09 1.4.1998 to 31.3.1999** 42/98-RF dt.22.4.08 68, 58, 868/- C.No.IV/02/278/08-Review dt.28.5.08 09/2009-CE(SLM) dt.13.1.2009 E/S/135/09 in E/202/09 380/09 dt.14.5.09 1.4.1999 to 30.9.1999 43/98-RF dt.22.4.08 28, 62, 905/- C.No.IV/02/278/08-Review dt.28.5.08 10/2009-CE(SLM) dt.13.1.2009 E/S/136/09 in E/203/09 381/09 dt.14.5.09 1.10.1999 to 31.3.2000** 44/98-RF dt.22.4.08 51, 64, 705/- C.No.IV/02/278/08-Review dt.28.5.08 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 to 31.3.1996 72/08(ADC) dt.24.11.08 24, 91, 764/- 06/2009-CE(SLM) dt.11.3.2009 65/2014-CE dt.7.2.2014 1.4.1996 to 31.3.1997 73/08(ADC) dt.24.11.08 45, 73, 317/- 07/2009-CE(SLM) dt.11.3.2009 66/2014-CE dt.7.2.2014 1.4.1997 to 31.3.1998 74/08(ADC) dt.24.11.08 45, 82, 083/- 08/2009-CE(SLM) dt.11.3.2009 67/2014-CE dt.7.2.2014 1.4.1998 to 31.3.1999** ** ** 1.4.1999 to 30.9.1999 75/08(ADC) dt.24.11.08 28, 62, 905/- 10/2009-CE(SLM) dt.11.3.2009 68/2014-CE dt.7.2.2014 1.10.1999 to 31.3.2000** ** ** 1.4.2000 to 30.9.2000 76/08(ADC) dt.24.11.08 47, 89, 780/- 09/2009-CE(SLM) dt.11.3.2009 69/2014-CE dt.7.2.2014 1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellant made refund applications of different amounts with subsequent revision thereof for different periods as appearing in column 1 of Table A aforesaid on 12.05.1995 on the ground that duty paid under protest was refundable to it since there arose no liability to duty with effect from 01.09.1994. Such prayer was allowed and refunds as appearing in column 3 of Table - A were sanctioned by the Adjudicating Authority in terms of different refund sanctioning orders all dated 22.4.2008 as appearing in column 2 of that Table. To do so, that authority relied on the decision of Tribunal reported in 2001 (131) E.L.T.510 (T) holding that the above said nature of the activity carried out by the appellant does not amount to manufacture and there shall not be classification of goods under Tariff Heading 7308.90. He also relied on the decision of the Tribunal in TANSI Engineering Works Vs Commissioner reported in 1996 (88) E.L.T.407 (Tri.) holding that the appellant is not liable to duty as has been held by Tribunal in the own case of the appellant, in Appeal No.E/1461 1462/1996 disposed on 05.01.2001. 5.2 Revenue being aggrieved by the above refund orders all dated 22.4.2008 we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s) who upheld orders of adjudication as depicted in column 4 of Table - B by his orders depicted in column 5 thereof came in appeal before Tribunal in the batch of appeals registered as Appeal Nos. E/ 40978to 40990/2014 . 7.1 In the course of hearing, on behalf of appellant it was submitted that the real activity carried out by the appellant was cutting the angles and channels of different size into small pieces and punching holes therein in its centralized workshop which were sent to the respective Divisions for embedding the same to earth to house the transformers or transmission towers. There was clearance of angles and channels only by appellant but not structurals at all. The structural come into being as a structure when the goods cleared by appellant were embedded to earth and not severable and became immovable property. Such material fact was appreciated by Tribunal in various judgments aforesaid in the own case of appellant and such activity remained unchanged even in the proceedings under appeal in the present batch of appeals before Tribunal. 7.2 Revenue supported orders of Authority below. 8. In the 2 (two) Appeals registered as Nos. E/ 41368 41369/2013 befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laneous applications in the batch of appeals registered as appeal Nos. E/40978/2014 to E/40990/2014 before Tribunal stand disposed. Appeal Nos. E/41368 41369/2013 13. It is brought to our notice today that the appellant's CENVAT credit claim is in question in Appeal No. E/41368/2013 and E/41369/2013. As has been held above that the activity carried out by the appellants does not amount to manufacture, it is not entitled to CENVAT credit on the inputs used in such activity. Learned consultant for the appellant says that because of the repeated litigation by Revenue, the appellant was paying duty under protest and availing CENVAT credit to safeguard interest of the State owned PSU. It is hereby ordered that CENVAT credit shall only be admissible on inputs used in any other activity resulting in duty liability other than the impugned activity. There shall not be levy of interest or penalty for no levy of duty ordered by this order. Reversal of input credit if any required under law be made within a month of receipt of this order and learned Adjudicating Authority informed as to the same within two weeks thereof. 14. Learned consultant for the appellant says that pre-dep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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