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2015 (11) TMI 86 - CESTAT MUMBAI

2015 (11) TMI 86 - CESTAT MUMBAI - 2015 (330) E.L.T. 733 (Tri. - Mumbai) - Availment of CENVAT Credit - returned goods - Activity amounts to Manufacture or not - held that:- From the reading Rule 16, it is very clear that taking the status of supplier, even if it is presumed that the activity of supplier is not of manufacture but by virtue of above Rule 16, he was permitted to receive the duty paid goods and taken credit and in case the said duty paid goods after under going the process can be c .....

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manufacture but he has paid the said duty is available as Cenvat credit to the appellant. In view of my above discussion, I am of the view that the appellant is legally entitle for Cenvat credit in respect of laminated film received by them for packaging purpose. Therefore impugned order is set aside - Decided in favour of assessee. - APPEAL NO. E/89617/13 & Application No. E/STAY/99503/13 - Final Order No. A/2635/2015-WZB/SMB and Stay Order No. S/417/2015-WZB/SMB - Dated:- 25-6-2015 - Mr. Rames .....

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ff of Tobacco falling under Chapter 24 of the Central Excise Tariff Act, 1985. They are availing the Cenvat Credit on inputs, Capital goods & Inputs services. On scrutiny of records of the appellant it was noticed that, during the period November 2007 to October 2008 the appellant had availed and utilized Cenvat Credit of ₹ 1,34,374/- on flexible laminated film purchased from M/s. Packotech Industries, Saifabad, Haryana. It has been observed that the process of lamination carried out b .....

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grieved, the appellant filed appeal before the Commissioner(Appeals), who rejected the appeal of the appellant therefore appellant is before me. 3. Shri. N.M. Porwal, Ld. Consultant for the appellant submits that they received the laminated film under cover of duty paying invoices and excise duty was admittedly pad on such inputs. He submits that on their part whether activity of the manufacturer or supplier is amount to manufacture or otherwise cannot be disputed. The appellant is recipient of .....

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f duty so paid is under the excise head as the assessment of payment of duty by supplier has not been altered or modified by any re-assessment in such situation at the appellants hand it cannot be said that duty paid by the manufacturer supplier is not duty hence credit is admissible. He further submits that assessment and aspect of manufacture at manufacturer suppliers end has not been challenged or by the Jurisdictional Central Excise authority of the supplier therefore activity which bonafi .....

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ier is that of manufacture or otherwise. In absence of such provision aspect of dutiabitlity and manufacture it cannot be decided at the end of the recipient of the input. He further submits that as regard whether an activity lamination is manufacture or other wise in the case of Paper Products Ltd. Vs. Commissioner of Central Excise, Mumbai-III[2014(304) ELT 145(Tri. Mum)] division bench of this Tribunal held that laminating material use for packaging purpose can be considered as manufacture as .....

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dustries Commissioner(Appeals) by order No. 180/SVS/PK/2014 dated 22/4/2013 allowed the credit in respect of input. He further submits that even if it is presumed that manufacture activity is disputed, the Cenvat credit at the recipient end of the said supplier cannot be disputed. In this regard he placed reliance on the judgment of this Tribunal in case of Commissioner of C. Ex. Rajkot Vs. Advance Diesel Engines Pvt Ltd[2012(278) ELT 491(Tri. Ahmd.)]. He also submits that this Tribunal in case .....

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duty paid inputs. Question whether input had arising out of process of manufacture is irr-releanvat. The relevant question is whether input was duty paid. In view of the submissions, Ld. Counsel submits that Cenvat credit is admissible therefore appeal may be allowed. 4. Shri. H.M. Dixit, Ld. Asstt. Commissioner(A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He further submits that Cenvat credit is allowed only in respect of duty paid on the inputs. He s .....

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se payment made by the supplier is not duty therefore appellant cannot be allowed Cenvat credit of such amount paid by the supplier. 5. I have carefully considered the submissions made by both sides and perused the record. 6. The lower authority have denied the Cenvat credit to the appellant only on the ground that activity of supplier of input in respect of laminated film does not amount to manufacture. This view was expressed by the lower authorities mainly on the ground that lamination of fil .....

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tion of duty paid film used for packaging purpose can be considered as manufacture. As per Section 2F of Central Excise Act, 1944. With this judgment there is no activity carried out by the supplier is amount to manufacture therefore the duty payment by the supplier is as per the provisions of central Excise and it cannot be said that payment is not of duty. In view of this position since payment by the supplier is of excise duty and of the manufacture goods Cenvat Credit to the appellant cannot .....

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ions of Rule 16 of Central Excise Rules, 2002 which is reproduced below:- RULE 16. Credit of duty on goods brought to the factory. (1) Where any goods on which duty had been paid at the time of removal thereof are brought to any factory for being re-made, refined, re-conditioned or for any other reason, the assessee shall state the particulars of such receipt in his records and shall be entitled to take CENVAT credit of the duty paid as if such goods are received as inputs under the CENVAT Credi .....

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