TMI Blog2018 (12) TMI 845X X X X Extracts X X X X X X X X Extracts X X X X ..... lso on account of subsequent decisions of the Hon‘ble Supreme Court. Hon‘ble Supreme Court in their subsequent judgment in Thermax Babcock & Wilcox Ltd. [2015 (5) TMI 631 - SUPREME COURT], has been followed by the Tribunal in Thermax Ltd. Vs. Commissioner of Central Excise, Pune [2016 (7) TMI 797 - CESTAT MUMBAI] wherein it has been held that bought out items used in erection of boilers at customer‘s site are inputs and cannot be distinguished from inputs used in manufacture of components within the factory, as both have gone into manufacture of final product. CENVAT credit availed on the impugned bought out goods / inputs, with interest, and also imposing penalties under various provisions of law, cannot be sustained and require to be set aside - appeal allowed - decided in favor of appellant. - Appeal Nos. E/41444 to 41455/2017 - Final Order Nos. 42890-42901/2018 - Dated:- 16-11-2018 - Ms. Sulekha Beevi C.S., Member (Judicial) AND Shri Madhu Mohan Damodhar, Member (Technical) For the Appellant : Shri C. Manickam, Advocate For the Respondent : Shri A. Cletus, Addl. Commissioner (AR) ORDER Per Bench 1.1 The facts of the case are that M/s. KCP Ltd., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odvat credit including imposition of appropriate penalty, after giving an effective opportunity of hearing to the appellants, in accordance with law. The appeals are thus allowed by remand. The cross-objections stand disposed of accordingly. 1.2 Against this Tribunal s order, the appellant preferred Civil Appeal No. 5509 5510/2003 before the Hon ble Supreme Court which were disposed of on 3.9.2013, as reported in 2013 (295) ELT 353 (SC). The Hon ble Supreme Court upheld the order passed by Tribunal. The relevant portion is reproduced as under:- 24. It is also not in dispute that the appellant had purchased some machinery from others and such machinery had not even been unpacked by it and in the exact condition it had been transported along with the machinery manufactured by it to Vietnam. Thus, the appellant did not use the purchased machinery in its premises or in its factory and therefore, necessary condition incorporated in the Rules for availing credit of the MODVAT had not been complied with. To avail the MODVAT credit, the input on which excise duty is paid must be used in the manufacture of the final product in the factory of the assessee. The machinery purchased b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he applicability of interest provisions considering the plea made by M/s. KCP that the credit was not utilized Penalty provisions under Rules 57I and 57U were incorporated only with effect from 23.7.1996 (wrongly mentioned as 23.6.1996) and no penalty under these rules can be imposed for the period prior to this date. If any other penal provision is attracted M/s. KCP are to be given a reasonable opportunity of defense before imposition of such penalty The plea on reopening the question of time bar was rejected as the order of the Tribunal had merged in the order of the Apex Court The plea for consideration of rebate was rejected as no such claim existed in the preceding proceedings The aspect of depreciation claims in respect of the capital goods to be examined and dealt with The predeposit of ₹ 1,40,36,960/- made in compliance of Misc. Order 40032 to 40075/2015 dated 5.1.2015 shall not be claimed as refund till the completion of the adjudication proceedings. 1.4 With respect to appeals (E/41742 to 41761/2014) relating to remaining 20 notices, the Tribunal ordered as under:- In the course of hearing we were given to understand that issue as that was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order-in-Original Period Appeal No. Amount Involved 1. 24/1996 dated 29.3.1996 1/2017 dated 29.3.2017 July 1994 to Jan. 1996 E/41435/2017 67,67,884/- 2. Nil/1997 dated 3.3.1997 2/2017 dated 29.3.2017 Aug. 1996 to Jan. 1997 E/41436/2017 18,81,113/- 3. 598/95 dated 30.5.1995 3/2017 dated 29.3.2017 Nov. 1994 Dec. 1994 No appeal 1,31,519/DROPPED 4. 146/96 dated 2.9.1996 4/2017 dated 29.3.2017 Feb. 1996 to July 1996 E/41437/2017 1,36,203/- 5. 3/98 dated 19.2.1998 5/2017 dated 29.3.2017 Sep. 1997 E/41438/2017 4,16,000/- 6. 1007/98 dated 28.9.1998 6/2017 dated 29.3.2017 April 1998 to Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17,03,347/- 19. 12/2010 dt. 26.3.2010 19/2017 dated 29.3.2017 April 2009 to Dec. 2009 E/41452/2017 21,53,426/- 20. 3/2011 dt. 14.1.2011 20/2017 dated 29.3.2017 Jan. 2010 to Dec. 2010 E/41453/2017 16,67,800/- 21. 3/2012 dt. 2.2.2012 21/2017 dated 29.3.2017 Jan. 2010 to Dec. 2011 E/41454/2017 12,34,437/- 22. 3/2013 dt. 24.1.2013 22/2017 dated 29.3.2017 Jan. 2012 to Nov. 2012 E/41455/2017 12,21,717/- 1.6 Nine appeals No. E/41435 to 41443/2017 arising out of the same impugned order (Sl. No. 1 and 3 to 10 in above table) have already been disposed by common order dated 41661 to 41669/2018 dated 31.5.2018, by this Tribunal, inter alia, dismissing the appeals on the ground that the issue involved therein had been agitated right upto the Hon ble Supreme Court and had attained finalit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so find that the Respondent (Department) has placed reliance on the decision of the Hon‟ble Apex Court in the Appellant‟s own case (2013 (295) ELT 353 (SC)), which has been vehemently objected to by the Appellant. In this regard, I find that the said decision rendered for the period prior to the amendment made in the definition of inputs effective from 01.03.2011 cannot help the department‟s side for the impugned period. The Apex Court therein examined the issue in the light of the requirement in the definition of inputs during the period prior to 01.03.2011 that the same be used inside the factory of manufacture to qualify for CENVAT credit. However, the impugned period has witnessed substantial change in the definition of inputs and hence the said Apex Court‟s decision against the same Appellant cannot be cited in revenue‟s favour. (v) When the erstwhile Central Excise Rules were replaced with new set of Rules from 2000, a separate set of Rules were issued under CENVAT Credit scheme as CENVAT Credit Rules, 2000. Rule 16A of the new Rules provided for credit of duty paid on the goods brought into the factory not only for the purposes of repair, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board clarified vide Circular No.607/44/2001-CX. Dated 13.12.2001, that [para 2 3], 2 .The said Rule 16 provides for return of duty paid goods to the factory for being re-made, refined, reconditioned or any other reason .3. Accordingly, the Board has decided that the word ―return in Rule 16 referred above, need not be interpreted strictly. Receipt of duty paid goods in the factory of manufacturer for the purpose specified in said rule may be allowed even in respect of goods not manufactured by them The word returned was emphasized not to be strictly interpreted and receipt of duty paid goods paid may be allowed even in respect of goods not manufactured by them. 3 01.07.2001 Central Excise Rules, 2002 16.Credit of duty on goods brought to the factory. (1) Where any goods on which duty had been paid at the time of removal thereof are brought to any factory for being re-made, refined, re-conditioned or for any other reason, the assesse shall state the particulars of such receipt in his records and shall be entitled to take CENVAT credit of the duty paid as if such goods are received as inputs under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings covered by these appeals should have been separately considered and adjudicated and the same yardstick need not necessarily apply as was done for the proceedings relating to earlier periods. It is also contended that the Tribunal should have restricted its decision in their final order dated 21.9.2015 only to the cases which were covered by the Hon ble Supreme Court s decision as the remaining cases which do not pertain to the same statutory and legal provisions. However, in these cases, there has definitely been a change of definition and scope of inputs and Rule 16. It is therefore submitted that the decision of the Tribunal in respect of the remaining present cases with the same directions as was done for proceedings pertaining to earlier periods is not in order which is per incuriam. 3.1 The ld. AR Shri A. Cletus appeared and argued on behalf of the Department. He submitted that the issue whether the appellants are eligible for CENVAT credit on the bought out items was already decided by the Hon ble Supreme Court in the appellant s own case as reported in 2013 (295) ELT 353 (SC). In paras 24 and 25 of the said decision, the Hon ble Supreme Court had observed that the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overs the matter. The bought out items were neither used nor required to be used in the factory of the appellant for manufacture of the final product which is the sugar plant. These were exported in the same condition and therefore the situation / facts in the case before the Hon ble Supreme Court is still in vogue in these appeals and therefore the credit is not eligible. He also adverted to the Tribunal s Final Order No. 41661 to 41669/2018 dated 31.5.2018, wherein the Tribunal had disposed nine appeals of the same appellant for the earlier periods and submitted that the Tribunal had therein observed that the facts being the same, the decision of the Hon ble Supreme Court is applicable. He therefore prayed that the appeals may be dismissed. 4. Heard both sides and have gone through the case records. 5.1 The ld. AR has drawn attention to the fact that the identical dispute for earlier periods had been in litigation and had culminated in the judgment of the Hon ble Supreme Court in the appellant s own case as reported in 2013 (295) ELT 353 (SC), wherein inter alia, the Hon ble Apex Court had held that input credit would not be available on machinery bought out by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in a foreign country. In any case, it cannot be said to have manufactured that plant in its factory. 5.3 In doing so, the Hon ble Supreme Court had upheld the order of remand with certain directions, given by the Tribunal in Final Order No. 301 and 302/2003 dated 2.5.2003 (as reported in 2003 (161) ELT 585 (Tri. Chennai). In the denovo proceedings, the adjudicating authority had not only caused denovo adjudication of the aforesaid two show cause notices that had been earlier remanded by the Tribunal for recomputation but also took up the original adjudication of subsequent 20 show cause notices on the same issue for subsequent periods which were kept in the call book. The combined adjudication orders No. 8 9/2014 dated 29.4.2014 was once again appealed and as discussed supra, the Tribunal vide Final Order No. 41389 to 41440/2015 dated 21.9.2015 remanded the matter relating to show cause notices dated 29.3.1996 and 3.3.1997 with certain directions and in respect of the remaining 20 notices also, the Tribunal remanded the matters for denovo adjudication. Out of these 22 impugned orders (Order-in-Original No. 1 to 22/2017 dated 29.3.2017), appeals relating to Order-in-Origina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon‟ble Supreme Court reported in 2013 (295) ELT 353 (SC). On the subsequent occasion, when the same matter came up to this Tribunal, vide Final Order dated 21.9.2015, the Tribunal had once again gone into this issue and inter alia held that the matter has reached finality by the decision of the Hon‟ble Supreme Court. Judicial propriety requires us to follow the Hon‟ble Apex Court view in the appellant‟s own case as reported in 2013 (295) ELT 353 (SC). Such conduct is enjoined on us by the principle of stare decisis‟ namely, to stand for things decided‟. Hence as a lower court, we are definitely required to follow the precedent on an issue, when it is already decided by Apex Court, as it has been in this case. 5.4 The present appeals which are pending decision herein, are Appeal Nos. E/41444 to 41455/2017 arising out of the remaining Orders in Original No. 11/2017 to 22/2017 dated 29.3.2017 covering the periods September 2002 to November 2012. 5.5 On a closer scrutiny, we find that the earlier Tribunal s Final Orders No. 301 302/2003 dated 2.5.2003 covered the appeals involving the two show cause notices dated 29.2.1996 and 3.3.19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ging materials in respect of which any exemption to the extent of the duty of excise payable on the value of the packaging materials is being availed of for packaging of any final products; (iii) Packaging materials the cost of which is not included or had not been included during the preceding financial year in the assessable value of the final products under section 4 of the Act; (iv) crates and bottles used for aerated waters; (2) Notwithstanding anything contained in sub-rule (1), the Central Government may, by notification in the official Gazette, declare the inputs on which declared duties of excise or additional duty (hereinafter referred to as declared duty‟) paid shall be deemed to have been paid at such rate or equivalent to such amount as may be specified in the said notification and allow the credit of such declared duty deemed to have been paid in such manner and subject to such condition as may be specified in the said notification even if the declared inputs are not used directly by the manufacturer of final products declared in the said notification, but are contained in the said final products. Explanation. For the purposes of this sub0rule, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or not, and includes accessories of the final products cleared along with the final product, goods used as paint or as packing material, or as fuel, or for generation of electricity or steam used for manufacture of final products or for any other purpose, within the factory of production, and also includes lubricating oils, greases, cutting oils and coolants. Explanation:- The high speed diesel oil or motor spirit, commonly known as petrol, shall not be treated as an input for any purpose whatsoever . (Emphasis added) We thus find that w.e.f. 31.3.2000, CENVAT scheme brought about a clear and distinct departure in the definition of inputs. Earlier, inter alia, inputs were required to be ―goods used in or in relation to the manufacture of the final products, whether directly or indirectly and whether contained in final product or not . However, the new definition w.e.f. 31.3.2000 included within the scope of inputs, accessories of final products cleared along with the final products. (b) With the introduction of CENVAT Credit Rules, 2001, w.e.f. 1.6.2001, the same definition of ‗inputs which were brought about in 31.3.2000 above was incorporated under Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are further used in the factory of the manufacturer [but shall not include cement, angles, channels, centrally twisted deform bar (CTD) or Thermo Mechanically Treated bar (TMT) and other items used for construction of factory shed, building or laying of foundation or making of structures for support of capital goods . The above wordings was inserted vide Notification No.16/2009-CE(NT) dated 7.7.2009. (Emphasis Supplied) As is evident, w.e.f. 10.9.2004, not just accessories, but even other consumables like greases, cutting oils, lubricating oil, coolants etc. of final products cleared along with the final products, and further goods used as paint or as packing material or as fuel etc. were also brought within the ambit of ‗inputs . (e) The definition of ‗inputs continued as above till its substitution with effect from 1.7.2011 when Rule 2(k) was further substituted as under:- input means - (i) all goods used in the factory by the manufacturer of the final product; or (ii) any goods including accessories, cleared along with the final product, the value of which is included in the value of the final product and goods used for providing free warrant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3;capital goods means,- (i) all goods falling under Chapter 82, chapter 84, Chapter 85, Chapter 90, heading No.68.02 and sub-heading No.6801.10 of the First Schedule to the Tariff Act; (ii) components, spares and accessories of the goods specified at (i) above; (iii) moulds and dies; (iv) refractories and refractory materials ; (v) tubes and pipes and fittings thereof; (vi) pollution control equipment; and (vii) storage tank, used in the factory of the manufacturer of the final products, but does not include any equipment or appliance used in an office; (g) So also, after the introduction of CENVAT Credit Rules, 2002 vide Notification No.5/2002-CE (NT) dated 01.03.2002, the definition of ―capital goods tweaked as under:- (b) ―capital goods means,- (i) all goods falling under Chapter 82, chapter 84, Chapter 85, Chapter 90, heading No.68.02 and sub-heading No.6801.10 of the First Schedule to the Tariff Act; (ii) pollution control equipment (iii) components, spares and accessories of the goods specified at (i) and (ii) above; (iv) moulds and dies; (v) refractories and refractory materials ; (vi) tubes and pipes and fit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above, the evolving definitions of inputs with effect from 1.4.2001 became broad based enough to include not only all goods used in the factory but also any goods including accessories etc. provided the value thereof is included in the value of the final product. In our view, the word ‗includes should be interpreted as being used to enlarge the meaning of preceding words. The examples of ‗inputs , like accessories, coolants, lubricating oil etc. given immediately after the word ‗includes is only to give an idea of the genre and type of goods that could be brought within the ambit of such inclusivity. The maxim ‗ejusdem juris of the same kind or nature, will apply in its full force here. Where ever accessories of the final product are ‗included within the said definition, it is but a natural corollary that parts or components or even sub-assemblies of the sugar plant machinery, which may well be bought out items that are removed along with the remaining portions manufactured by the appellant, will also find a fit within the fold of ―inputs . 5.10. In arriving at this conclusion, we are only following the ratio of the Hon ble Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lands do not form part of the undertakings but are different subject matters, even then these would be brought within the purview of the vesting by reason of the above expressions. In this connection reference may be made to 76 Corpus Juris Secundum at pages 620 and 621 where it is stated that the term relate ‟ is also defined as meaning to bring into association or connection with. It has been clearly mentioned that relating to has been held to be equivalent to or synonymous with as to concerning with and pertaining to . The expression pertaining to is an expression of expansion and not of contraction. xxxx xxxxxx xxxxx xxxxxx xxxx 64. On the construction of Sections 3 and 4 we have come to the conclusion that the shares vest in the Central Government even if we read Sections 3 and 4 in conjunction with Sections 7 and 8 of the Act on the well settled principles which we have reiterated before. The expression in relation to has been interpreted to be the words of widest amplitude. See National Textile Corporation Ltd. and O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ―input which were in force during the period impugned in the present appeals as also the settled interpretation of the word ―includes and ―in or in relation to , to credit of duty will be eligible in respect of inputs / all the goods exported by the appellant for eventual transformation into a complete sugar plant, both self-manufactured including also those bought out goods / inputs removed as such that were in accompaniment. In consequence, the credit of duty that may have been paid even on the bought out goods / inputs would very much accrue to the appellants as CENVAT credit during the impugned period, in respect of these twelve appeals. 6.1 The second alternative argument made by the Ld. counsel is that even under Rule 16 of CENVAT Credit Rules, 2000, credit of duty paid was eligible to be taken on goods brought into the factory not only for the purpose of repair, refining, reconditioning etc. but also for other purposes by virtue of the wordings ―any other reason . 6.2 Ld. counsel has also drawn our attention to Board s clarification No. 607/44/2001-CX dated 13.12.2001, clarifying the scope of the said Rule 16. Ld. counsel has also pointed out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in his records and shall be entitled to take CENVAT credit of the duty paid as if such goods are received as inputs under the CENVAT Credit Rules, 2002 and utilise this credit according to the said rules. (2) If the process to which the goods are subjected before being removed does not amount to manufacture, the manufacturer shall pay an amount equal to the CENVAT credit taken under sub-rule (1) and in any other case the manufacturer shall pay duty on goods received under sub-rule (1) at the rate applicable on the date of removal and on the value determined under sub-section (2) of section 3 or section 4 or section 4A of the Act, as the case may be. Explanation: The amount paid under this sub-rule shall be allowed as CENVAT credit as if it was a duty paid by a manufacturer who removes the goods. (3) If there is any difficulty in following the provisions of sub-rule (1) and sub-rule (2), the assessee may receive the goods for being re-made, refined, re-conditioned or for any other reason and may remove the goods subsequently subject to such conditions as may be specified by the [Principal Commissioner or Commissioner, as the case may be]*. (*- this amendment was made in 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xxxx xxxxxx xxxxx xxxxxx xxxx 6. We find that the ld. counsel made various alternative submissions. We find that activity of the appellant, i.e., receipt of duty paid goods, i.e., Oil Slump Body, Cylinder Head Rover Cylinder, availment of Cenvat credit thereon and reissue the same on payment of duty or for export is squarely covered by Rule 16 of the CER, 2002 . From the above rule, it is clear that the assessee is entitled to avail Cenvat credit on the duty paid goods even though the said duty paid goods does not undergo manufacturing process. The only condition is that if the duty paid goods is cleared after process which amounts to manufacture, the assessee is required to pay duty on the transaction value and if the goods are cleared without manufacturing process the duty which required to be paid is equal to the Cenvat credit availed. Rule 16 also holds the duty paid goods as inputs therefore, the Cenvat credit is admissible. (b) In the case of M/s. Bericap India (P) Ltd. Vs. Commissioner of Central Excise, Pune 2018 (3) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 001 is not covered by Rule 16. However, even if Rule 16 was not available, the respondents have taken credit on the input and cleared after the processing of drawing for export. As per this transaction, it is nothing but the availment of credit on the input and if at all the activity does not amount to manufacture it is removal of input as such. The removal of input either can be on the payment of duty which is equal to the Cenvat amount or can be cleared without payment of duty for export under bond. Therefore, the Cenvat credit availed by the respondents either before 1-7-2001 or thereafter and the processed goods have been cleared for export, the Cenvat credit is legally admissible. It is not the case of the Revenue that the respondent has cleared the goods in the domestic market without payment of duty. The dispute is only related to the availment of credit. (d) In the case of M/s. NCL Industries Ltd. Vs. Commissioner of Central Excise, Guntur 2016 (337) ELT 438 (Tri. Hyd.), it has been held as under:- 7. I have heard the rival submissions. For better appreciation Rule 16 of Central Excise Rules, 2002 is reproduced as under:- RULE 16 - Credit of duty on goods brou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tribunal, when applied to the appeals under decision would mean that even on the bought out items, which are being exported as such, the CENVAT credit is very much available to the appellant. 7. As mentioned, in our earlier Final Order No. 41661 to41669/2018 dated 31.5.2018, we dealt with nine appeals arising out of the very same impugned order No. 1 to 22/2017 dated 29.3.2017. We then found it proper and correct to reject the appeals by adhering to judicial propriety which required us to follow the Hon ble Supreme Court s decision in the appellant s own case reported in 2013 (295) ELT 353 (SC). It is however pertinent to note that in all those nine appeals, the period of dispute covered by the said judgment of the Hon ble Supreme Court pertained to a narrower definition of inputs which was analyzed and examined by the Apex Court. However, in these twelve appeals before us, as discussed supra, the period of dispute is after the amendment and enlargement of the definition of ‗inputs w.e.f. 1.6.2001 and further amplification to that definition caused about by the subsequent amendments of 21.6.2001, 1.3.2002, 10.9.2004, 7.7.2009 and 1.4.2011 etc. We, therefore, have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 86) E.L.T. 626] and Finolex Cables Ltd. v. Commissioner of Central Excise [2007 (210) E.L.T. 76 (Tri.-Mumbai) = 2007 (5) S.T.R. 261 (T)]. It is seen that In Re : Flat Products Equipments (I) Ltd. (supra) the voluminous nature of the contents compelled piecemeal removal but, as long as value of the bought-out‟ parts is also included in the value of machinery, credit of duty was permissible. In Re : Dicitex Dicor Pvt. Ltd. (supra), Cenvat credit taken on booklet containing designs, drawings, etc. of fabrics, even though not manufactured, was considered as essential inputs without which the fabrics could not be manufactured. This Tribunal In Re : Finolex Cables Ltd. (supra) held that the appellant, being eligible to export inputs, either under bond or claim of rebate, cannot be prevented from availing the benefit merely because of status as a manufacturer and allowed the input credit entitlement under Rule 57A of the erstwhile Central Excise Rules, 1944 and Rule 3 of the Cenvat Credit Rules, 2004. 7. Learned Authorised Representative, on the other hand, contends that the bought-out‟ items are used as auxiliary equipment to the goods manufactured by the appellant and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability arises only on the pressure parts or on the boiler, as such, including the bought-out parts‟. The Tribunal in Commissioner of Central Excise, Pune-I v. Thermax Bobcock Wilcox Ltd. [2005 (182) E.L.T. 336 (Tri-Mumbai)] decided that, in view of the sub-heading 8402.10 of the schedule to the Central Excise Tariff Act, 1985 and Rule 2(a) of the Interpretative Rules, it is the boiler which is the final product of the manufacturer which, being physically impossible to remove from the factory in assembled form, is, nevertheless, classifiable as boiler per se and consequently the duty is liable to be discharged on the value of the boiler in complete form including the value of the bought-out items‟. From this, it would appear that, even if the manufacturer is compelled to assemble the product on-site, it is the boiler in complete form that is liable to duty including the value of the bought-out‟ components. However, it has been pointed out, that in the matter of domestic clearance, the bought-out‟ items are generally not brought into the factory and the appellant does not take credit on the same. That, however, is not the practice when it came to export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plete machine. Further, the Board‟s circular dated 3-12-2006 makes it abundantly clear that even if inputs are removed as such they could be exported either under bond or under claim for rebate of duty and the Cenvat credit on the parts would be available. In the case of Narmada Chematur Pharmaceuticals Ltd. (referred to supra) the Hon‟ble Apex Court has clearly held that when the amount of Cenvat credit wrongly availed is exactly equivalent to the amount of excise duty paid by not availing the exemption the consequences is revenue neutral and hence the demand for such wrong availment of credit is not sustainable in law. 7. Although no manufacturing activity was involved in such goods, the Tribunal came to the conclusion that the activity carried in such spares involves only repacking and does not amount to manufacture. It was further held that, if duty has been paid at the time of clearance of the spares, it should be treated as reversal of alleged ineligible Modvat credit. The ratio of this judgment supports the case of the appellant and not that of the department in this case. The appellant has cleared the goods on payment of duty and therefore whate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the Hon ble Apex Court in their subsequent judgments in Thermax Babcock Wilcox Ltd. (supra) and BHEL (supra) as also the Tribunal s decision in Thermax Ltd. (supra), we hold / order as under:- (i) The ratio of the Hon ble Supreme Court s decisions in the appellant s own case for earlier period in respect of SCNs No. 24/1996 and Nil / 1997 disposed of on 03.09.2013 as reported in 2013 (295) ELT 353 (SC) need not be applied to the subsequent periods covered by these 12 appeals, not only on account of aforesaid change of definition of ―inputs / ―capital goods as also on account of subsequent decisions of the Hon ble Supreme Court. (ii) In view of the changed definitions and provisions of law during the period of dispute in these appeals, appellant are very much eligible to avail CENVAT credit of duty paid in respect of the input / goods which have been bought out by the appellants and have been removed / cleared as such from their factory in various consignments for export under bond for eventual purposes of setting up of sugar plant in Indonesia. (iii) In consequence, the impugned orders which have held to the contrary confirming demand of such CENVAT c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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