9911796707
TMI Blog2018 (11) TMI 1273X X X X Extracts X X X X X X X X Extracts X X X X ..... rder-in-Original No. 63 dated 16.01.2017 arising out of common show cause notice No. 5848 dated 07.06.2016. 2. M/s. Dwekam Electrodes Pvt. Ltd. Appellant No.1 is engaged in manufacture of Flux Cored Wire. They are also availing Cenvat Credit facility under the provisions of Cenvat Credit Rules, 2004 (CCR). With effect from 01.10.2012 M/s.Dwekam Electrodes Pvt. Ltd. (Appellant No.1) leased its factory to D & H Secheron Electrodes Pvt. Ltd. transferring the manufacturing facilities of all the products except for flux cored wire to Appellant No.2. 3. On an intelligence being gathered, the Department observed that Appellant No.1 is clearing the goods as that of welding electrodes, Saw Flux, Saw Wire, Filler Wire and CO2 wire alongwith Flux Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cturing set up for all these products except for Flux Cored Wire was leased out to Appellant No.2. Still all these goods require to undergo the process of ovenizing and packing for being the finished products. The said facilities were available in the units of Appellant No.1 as well as Appellant No.2. Due to this the semi-finished goods of Appellant No.2 were being received in the premises of Appellant No.1 for being converted into the finished goods and the Appellant No.1 while clearing these finished goods was discharging the excise liability, which is an admitted fact. It is impressed upon that once the excise liability has been discharged, the availment of Cenvat Credit thereupon cannot be denied merely on the ground that ovenizing and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r than Flux Cored Wire. Hence, there is no alleged infirmity in the order under challenge. It is further impressed upon that ld. Principal Commissioner has specifically mentioned about inspection of the premises of Appellant No.1 where no facility of manufacturing of the impugned goods was noticed. In absence whereof availment of Cenvat Credit was not legally permissible to the Appellant No.1. The demand was rightly been proposed and has rightly been confirmed alongwith the penalty on Appellant No.1 and even upon Appellant No.3, both being the Directors of the appellants. The appeal is therefore prayed to be dismissed. 8. After hearing both the parties, we are of the opinion as follows:- 8.1 That Appellant No.1 who was initially manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjudicating authority is miserably silent about scrutinising the said record. It is, therefore, opined that the adjudicating authority has committed an error while merely relying upon the lease agreement about manufacturing setup to have been leased out to the Appellant No.2. The factum of converting the semi-finished goods into finished one by the Appellant No.1 itself and the factum of presence of the set-up about ovenizing and packing required for converting the products into finished states with Appellant No.1 as well has miserably been ignored. Hence we are of opinion that ld. Principal Commissioner has definitely committed an error, while confirming the impugned demand. 10. Irrespective that the process of said ovenizing and pac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the goods are subjected to the process of manufacture, then, at the time of removal, the manufacturer is liable to pay excise duty thereon. - However, if the goods are not subjected to the process of manufacture, then, the assessee is required to reverse the Cenvat Credit availed on the goods at the time of receipt. 12. Tribunal Mumbai in the case of Apollo Tyres Ltd. vs. CCE, Pune - 2011 (272) ELT 84 has held that even if the goods are received in the factory and are cleared as such after storage, the said Rule 16 permits availment of credit at the time of receipt and requires reversal of credit availed at the time of clearance thereof. Since Appellant No.1 has availed the Cenvat Credit on the goods at the time of receipt and has paid ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
