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2017 (5) TMI 873 - CESTAT MUMBAI

2017 (5) TMI 873 - CESTAT MUMBAI - TMI - Second round of appeal - Manufacture - whether the doubling of single yarn is amount to manufacture and liable to duty? - whether double yarn manufactured from duty paying single yarn is eligible for exemption under N/N. 35/95-CE? - Held that: - Ground was not raised earlier - submission of the Ld. Counsel that doubling of yarn is amount to manufacture and whether the appellant is entitle for exemption N/N. 35/95-CE cannot be raised at this stage - Howeve .....

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ted:- 17-4-2017 - Mr Ramesh Nair, Member(Judicial) And Mr. Raju, Member (Technical) Shri. Prakash Shah, Advocate for the Appellants Shri. Ashutosh Nath, Asstt. Commissioner(A.R.) for the Respondent ORDER Per: Ramesh Nair The issue involved in the present case is whether the doubling of single yarn is amount to manufacture and liable to duty. Second issue is whether double yarn manufactured from duty paying single yarn is eligible for exemption under Notification No.35/95-CE. Present appeal is ag .....

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30-5-2005 appellant filed appeal before the Commissioner(Appeals) which was rejected by the Commissioner(Appeals) and Order-in-Original was upheld, therefore appellant is before us. 2. Shri. Prakash Shah, Ld. Counsel for the appellant submits that as per the decision in case of New Shorrock Mills Vs. Commissioner of C. Ex. & Cus., Vadodara [2006(202) ELT 192(Tri. LB)], it was held that doubling of yarn is not different excisable goods than the single yarn therefore do not attract separate ex .....

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-CE, remanded the proceedings to the adjudicating authority for the purpose of ascertaining the quantum of the credit available to the appellants and did not decide the question of applicability of the exemption. 3. On the other hand, Shri. Ashutosh Nath, Ld. Asstt. Commissioner(A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He further submits that in the budget for 1995-96, new chapter note No.1 under Chapter 53 and note no.2 in Chapter 22 was inserted, .....

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unit which is having single yarn manufacturing facility, the exemption on double yarn will not be applicable. He submits that in the first round, this Tribunal had remanded the matter to the original adjudicating authority only for the purpose for considering aspect of modvat. As regard other aspect this Tribunal has clearly held that the question whether the exemption would be available or not is not the question now we are concern with. Therefore issue of exemption notification attained finali .....

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a Vs. Okay Glass Industries [2015(330) ELT 872(All.)] 4. We have carefully considered the submissions made by both sides. 5. The impugned order is against denovo adjudication order as in the earlier order this Tribunal had remanded the matter to the Original adjudicating authority for denovo adjudication order with following observations. 3. It is now settled that modvat credit cannot be denied solely on the ground that it was not claimed when the goods were cleared. The Commissioner(Appeals) do .....

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wever, the appellant has to satisfy the adjudicating authority that duty was paid on single yarn that was actually doubled. For the sole purpose, the matter is remanded to the adjudicating authority. From the above observations of this Tribunal in the remand order dated 3-12-2003, it is seen that the issue to be decided by the adjudicating authority was of consideration of modvat credit and all the other issues were not open for re-adjudication by the adjudicating authority. It is also observed .....

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