TMI Blog2017 (7) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... favor of the respondent which was reported as Universal Ferro & Allied Chelnicals Ltd Vs. Commr. of C. Ex. Nagpur [2005 (10) TMI 539 - CESTAT MUMBAI], where it was held that The benefit of clearance at the rates applicable under N/N. 8/97 in this case as claimed by the appellants cannot be denied as there is no finding or an allegation of use of any duty free imported raw material having been utilized in the manufacture of Silicon Manganese by the appellants - appeal dismissed - decided against Revenue. - E/3409/06 - M/87537/17/SMB - Dated:- 26-5-2017 - Mr. Ramesh Nair, Member(Judicial) Shri H. M. Dixit, Asstt. Commissioner (A.R.) for the Appellant Shri Sanjay Dwivedi, Advocate for the Respondent ORDER This appeal is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Shri. Sanjay Dwivedi, Ld. Counsel for the respondent submits at the outset submits that Ld. Commissioner(Appea1s) allowed the appeal of the respondent on the basis of his own order passed in the respondent's own case, the same order was upheld by the Tribunal therefore present appeal does not survive. 4. I have carefully considered the submissions made by both sides and perused the record. 5. I find that in the respondent's own case, the tribunal has decided the matter in favour of the respondent which was reported as Universal Ferro Allied Chelnicals Ltd Vs. Commr. of C. Ex. Nagpur[2015(321) ELT 462(Tri Mum)], whereby this Tribunal has passed following order: 2.1 After hearing both sides and considering t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would indicate that the Commissioner s reasoning arrived at in para 16(1) of the order impugned on examining the agreement to the effect that at all times property of all materials was vested with TISCO cannot be an acceptable reason to call for the present activity indulged by the EOU to be not a manufacture by the EOU. Following the Apex Court Constitutional Bench s decision in Ujagar Prints case (supra), in light of the fact herein that a new commercial product i.e. Silicon Manganese emerges due to the activity conducted, such an activity, would amounts to manufacture, it cannot be considered to be job work as understood and exempted vide Notification 119/75-Central Excise. This view finds support from the Apex Court s decision in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t manufacture excisable goods to be removed to DTA sales, therefore, the finding of the Commissioner that the conversion and clearance in DTA in this case was not allowed under EXIM Policy cannot be upheld, since the EXIM Policy para on DTA sales permits the clearance of goods for sale in DTA area up to 50% of the value of the exports effected. The stipulation is that the goods should have been manufactured in the EOU, which are so removed for sale in DTA. The word manufacture cannot be interpreted only as restricted to manufacture under the Central Excise Act, 1944, if the raw materials are processed and the resultant material is not covered under the definition of manufacture under the Central Excise Act, 1944, there being no levy on it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a perusal also reveal that the rates of duties as applicable under the Customs Act have been applied to quantify the demands. That would indicate that the Department itself admits the goods to be clearances by an EOU as prescribed under second proviso to Section 3(1). Properly accepting clearances of an EOU for the purposes of quantifying the duties and not be considered as clearances permissible from an EOU for the purposes of proviso (1) to Section 3 by the same show cause notices cannot be upheld. g. The benefit of clearance at the rates applicable under Notification 8/97 in this case as claimed by the appellants cannot be denied as there is no finding or an allegation of use of any duty free imported raw material having been u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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