TMI Blog2017 (7) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... to manufacture and therefore they are required to pay an amount equal to the credit availed and not payment of duty as per transaction value - appeal dismissed - decided against appellant. - E/436-437/2009-SM - 20994-20995/2017 - Dated:- 29-6-2017 - Shri S.S Garg, Judicial Member Mr. N. Anand, Advocate For the Appellant Mr. N. Jagadish, AR For the Respondent ORDER Per: S. S. Garg Appellants have filed these two appeals directed against the two impugned order dated 28.1.2009 passed by the Commissioner (A) wherein in one appeal No. E/437/2009 filed by the appellant, the Commissioner (A) has rejected the appeal of the appellant, whereas in appeal No. E/436/2009, the Commissioner (A) has allowed the appeal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and along with interest. Aggrieved by the said order, the appellant filed appeal before the Commissioner (A) who rejected the appeal of the appellant and hence, the present appeal. 3. Heard both the parties and perused the material on record. 4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed by mis-interpreting Rule 16 of Central Excise Rules, 2002 and also by ignoring the judicial precedents. He further submitted that it is an admitted fact that the duty paid goods returned to the factory of the appellant was not for carrying any processes as envisaged in Rule 16(1). The appellant did not carry any process or did not subject the goods to any process as envisag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. On the other hand, the learned AR defended the impugned order and submitted that the provisions of Rule 16 of Central Excise Rules, 2002 clearly stipulates that the manufacturer shall pay an amount equal to the credit taken under sub-rule (1) of Rule 16 if the process to which the goods are subjected before being removed does not amount to manufacture and in any other case, the duty shall be paid on the value to be determined under Section 4 or Section 4A of Central Excise Act, as the case may be. He further submitted that the duty paid on transaction value is incorrect as the question of determination of transaction value arise only if the goods are subjected to any process amounting to manufacture and therefore they are required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equently subject to such conditions as may be specified by the Commissioner. He further submitted that the Division bench of this Tribunal in the similar facts has considered Rule 16(2) and after relying upon the decision of the Division Bench in the case of Toyota Kirloskar case, the Commissioner (A) has held that where the appellants have invoked Rule 16(1) for return of goods, Rule 16(2) automatically follows and differential duty along with interest payable. He further submitted that the decision in the case of Apollo Tyres Ltd . is Single Member decision and the case of Toyota Kirloskar was decided by the Division Bench under identical circumstances and therefore, the decision of Division Bench on the same issue is a bindin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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