TMI Blog2017 (6) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... - SSI exemption - Held that: - It is a settled position of law that the demand cannot be sustained unless all the relied upon documents have been furnished to the appellant to enable them to defend themselves fairly - wherever the relied upon documents have not been supplied to the appellant, the demand of excise duty is liable to be set-aside. Matter remanded to the original adjudicating authority who will recompute the demand after excluding the demands attributable to the documents whose copies have not been made available to the appellant - Appeal allowed by way of remand. - E/1577/2007-EX[DB] - A/53700/2017-EX[DB] - Dated:- 7-6-2017 - Dr. Satish Chandra, President And Mr. V. Padmanabhan, Technical Member Shri Bipin Garg, Adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal, the order was set aside since it was passed ex parte without considering the submissions of the appellant, and vide the Tribunal s order dated 04.05.2001, the case was remanded back to the adjudicating authority for passing de novo orders after extending an opportunity to the appellant. The impugned order dated 09.03.2007 stands passed by the Commissioner in the de novo proceedings in which the duty demand as proposed in the show cause notice stands confirmed along with penalty of ₹ 50 lakh under rule 173Q. Aggrieved by this order the present appeal has been filed mainly agitating the following grounds: i) The process undertaken by the appellant by including other materials to the material purchased by them, does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and its alloys were classifiable under the same subheading and after 13.5.1998, the Central Excise Tariff stands fully aligned with HSN. Consequently, metal alloys cannot be considered as a manufactured product since they remain classified in the same heading as the metals. 5. A similar question came up before the Hon ble Supreme Court in the case of Commissioner Central Excise Jaipur Vs Mahavir Aluminum Ltd reported as 2007(212) ELT 3 (SC) in which the Apex Court considered a question whether aluminum in ingots when converted into billets would amount to manufacture. Both ingots and billets were classified in the same subheading of the tariff during the period of dispute. The apex court held as follows: 9. The assessee being a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of CEGAT, hence, calls for no interference. 13. Having heard the learned counsel for the parties, in our opinion, the appeal deserves to be allowed. The expression manufacture is defined in Clause (f) of Section 2 of the Act which reads thus : (f) Manufacture includes any process :- (i) incidental or ancillary to the completion of a manufactured product; (ii) which is specified in relation to any goods in the Section or Chapter notes of the Schedule to the Central Excise Tariff Act, 1985 as amounting to manufacture, (5 of 1986), and the word manufacturer shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable, goods, but also any pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the process is that of manufacture . 18. The Court after considering earlier decisions, stated : On an analysis of the aforesaid rulings, a two-old test emerges for deciding whether the process is that of manufacture . First, whether by the said process a different commercial commodity comes into existence or whether the identity of the original commodity ceases to exist; secondly, whether the commodity which was already in existence will serve no purpose but for the said process. In other words whether the commodity is already in existence will be of no commercial use but for the said process . 19. In the present case, the assessee is not only captively consuming Aluminium Billets for the production of Irrigation Pipes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to MODVAT benefits. If it is so, the assessee can claim the said benefit. We may make it clear that our setting aside the order passed by CEGAT in this appeal would not come in the way of the assessee in claiming and getting such benefit, if it is otherwise entitled. 24. The appeal is allowed accordingly with no order as to costs. 6. In the light of the above decision of the Apex Court, there is no scope for the argument that conversion of metal into alloys does not amount to manufacture. Ipso facto Central Excise duty is liable to be paid on the finished product cleared from the appellant s factory. 7. Now we turn to the various pleas raised by the appellant during the course of argument of the present appeal. It has been argu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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