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TMI Blog2018 (8) TMI 947X X X X Extracts X X X X X X X X Extracts X X X X ..... ut invoices, that the appellant has paid duty less than the cenvat credit availed on the inputs. Resultantly the show cause notice dated 27.10.2015 was served upon the appellants for effecting recovery of short duty paid under Rule 14 of Cenvat Credit Rules read with Section 11 A of Central Excise Act, 1944(CEA) alongwith the interest and the proportionate penalty. The additional Commissioner vide order dated 15.04.2016 has confirmed the entire demand alongwith the interest and penalty. The said order has been confirmed vide the order of Commissioner Appeals dated 24.10.2017. Hence the present appeal. 2. We have heard Sh. J.M. Sharma ld. Advocate for the appellant and Sh. S.K. Bansal ld. DR for the department. 3. It is submitted by the appellant that in fact 4 show cause notices were served upon the appellant as below:- SN Date of SCN Period O-I-O date Recovery Ordered (Rs.) O-I-A Date Amount upheld in O-I-A Decision 1 27.02.14 (Page 67) Feb 2013 to Jan 2014 03.02.15 (Pg. 74) 5,44,959 19.12.17 (Pg. 87) 2,64,463 The appeal was partly allowed after taking into consideration th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se excise duty CRGO Coil under 72261100 which is mentioned to have been cleared as cut coil under the belief that the cutting coils to a particular size amounts to manufacture. The Circular No. 584/21/2001-CX dated 07.09.2001 is being impressed upon as the basis of relief specifically the para 3 thereof as follows: It is also clear from the ER-1 returns and submissions made by the party that they are engaged in the manufacture of Transformer Core Stack (a transformer part) falling under Chapter 85 of the CETA 1985 and the CRGO Coils/ Sheets is the main input for the manufacture of transformer Core Stack. Thus it is clear that the CRGO Sheets not used in the manufacture of Transformers Core Stack and cleared by the party are nothing but removal of inputs 'as such' 5. The case law Lal Woolen And Silk Mills (P) Ltd. Vs. Collector of C. Ex., Chandigarh 1999(108) ELT 7 (SC) is being relied upon. It is also submitted that even if it is not manufacture the appellant was under bonfide impression for it to be so. Also in circular no. 911/1/2010- CX dated 14.01.2010 in cases where the process under taken by assessee in-disputably does not amount to manufacture, the mandate was fixed on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Excise Tariff Act, 1985 (5 of 1986) as amounting to manufacture; or (iii) Which in relation to the goods specified in the Third Schedule, involves packing or repacking of such goods in a unit container of labeling or re-labeling of container including he declaration of alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer, And the word "manufacture" 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 person who engages in their production or manufacture on his account.' 8. In the present case the admitted activity is cutting and silting of CRGO Coils irrespective the Tariff head had been changed but to still to be called as manufacture, the activity has either to be identical or ancillary to the completion of final product or should itself amount to manufacture or should be a process which in relation to the goods specified in third schedule involves packing or re- packing of such goods in a unit container. The main product of appellant, admittedly, is the manufacture of transform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... availed even for the period October, 2011 to January, 2013 hence he cannot afford to contest the levy confirmed. However the show cause notice has been objected as been barred by time. It is alleged that Commissioner (Appeals) has wrongly held department entitled for invoking extended period. It is submitted that the department was not entitled to invoke the extended period of limitation on the simple ground that they had already issued the show cause notice dated 27.02.2013. For a period immediately succeeding the period in demand in the show cause notice dated 24.08.2015 hence it does not lie in the month of the department that they had no notice or knowledge of the alleged short payment on part of the appellant. In the given circumstances the question of suppression of fact or the misrepresentation as is alleged against the appellant is not sustainable. 11. Though ld. DR has justified the findings of the adjudicating authority below submitting that the period of October, 2011 to January, 2013 of show cause notice dated 24.8.2015 could not be covered under the earlier show cause notice dated 27.02.2014 as the related information was not provided by the party during the preparat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.08.2015). The mere ground that ER Return for the said period was not made available at the time of enquiry qua show cause notice dated 27.02.2014 is not opined to be a justified reason for holding the department entitled for invoking the extended period of limitation. In the given circumstances, we are of the opinion that the adjudicating authority below has committed an error while permitting the extended period of limitation. Resultantly the show cause notice dated 24.08.2015 being beyond the one year of normal period of limitation is held to barred by time. The order under challenge is accordingly set aside to this extent. 12. With respect to this show cause notice dated 27.10.2015 the appellant has submitted that the adjudicating authority below has failed to consider the documents of the appellant i.e. Exhibit-F at page no. 155 wherein it has been specifically shown that the cenvat credit availed by the appellant is much less than the duty paid by him. Perusal of the document reflects correctness in the contention of the appellant order under challenge is observed to be silent to this aspect. Since the computation is required for the present purpose we deem it appropriate t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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