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2016 (10) TMI 679 - CESTAT AHMEDABAD

2016 (10) TMI 679 - CESTAT AHMEDABAD - TMI - Returned goods cleared as scrap - Applicability of Rule 16 of CER, 2002 - CENVAT credit - similar issue for the same assessee for another unit[2016 (10) TMI 71 - CESTAT AHMEDABAD] stand decided - Held that: - the decision in the case apply where it was held that the Appellant had received in their factory the defective duty paid goods for remaking, refining, reconditioning etc. It is not in dispute that the certain quantity of such defective goods wer .....

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the learned Commissioner (Appeals) in this regard, in as much as the provisions of the said Rules are specific. In the present case, it cannot be said that the process by which the defective goods are converted into scrap, should be considered as manufacture within the definition of manufacture as laid down under Section 2(f) of Central Excise Act, 1944. Therefore, on merit, the Appellant has no case. - Period of limitation - Held that: - all the facts are disclosed to the Department. there .....

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1162 / 2016 - Dated:- 7-10-2016 - Dr. D. M. Misra, Hon'ble Member (Judicial) For Assessee : Shri Anand Nainavati , Advocate For Revenue : Shri G Jha, Authorised Representative ORDER Per Dr D.M. Misra Heard both sides. 2. This appeal is filed against OIA-COMMR-A-/265/VDR-II/2009 dt 30.10.2009 passed by the Commissi0ner, Central Excise (Appeals), Vadodara. 3. The Ld Advocate for the appellant submits that on the very same issue for their another unit this Tribunal vide Order No.A/10893/2016, d .....

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This Tribunal on similar facts and facts and circumstances observed as under: 6. I find that the Appellant had received in their factory the defective duty paid goods for remaking, refining, reconditioning etc. It is not in dispute that the certain quantity of such defective goods were remade/reconditioned and cleared on payment of appropriate duty. However, the major portion of the returned goods was scrapped and cleared from the factory after payment of duty on the transaction value of the sc .....

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it 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 Credit Rules, 2002 and utilise this credit according to the said rules. (2) If the process t .....

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d as CENVAT credit as if it was a duty paid by the manufacturer who removes the goods.] (3) If there is any difficulty in following the provisions of sub-rule (1) and sub-rule (2), the assessee may receive the goods for being re-made, refined, re-conditioned or for any other reason and may remove the goods subsequently subject to such conditions as may be specified by the [Principal Commissioner or Commissioner, as the case may be]. 7. A plain reading of the said Rule make it clear that the proc .....

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ture within the definition of manufacture as laid down under Section 2(l) of Central Excise Act, 1944. Therefore, on merit, the Appellant has no case. However, on the issue of limitation, I find that the Appellant has meticulously maintained the Form V registers and filed D-3 intimation with the Department about receipt of the defective materials in their factory. Also, in the said register, it is maintained invoice-wise and clearance of scrap is also reflected. Also, in the monthly returns, the .....

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omission to disclose the correct information would not amount to suppression of facts unless there was a deliberate attempt made to escape the payment of duty. Where facts are known to both the parties, it cannot be held that there was suppression of facts. It was observed in Para 4 as follows:- 4. Section 11A empowers the Department to re-open proceedings if the levy has been short-levied or not levied within six months from the relevant date. But the proviso carves out an exception and permits .....

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