TMI Blog2019 (4) TMI 1413X X X X Extracts X X X X X X X X Extracts X X X X ..... o the appellant has availed and utilised the Cenvat Credit as per the law. Appeal allowed - decided in favor of appellant. - Appeal No. E/255/2009 & 42/2010-DB - Final Order No.75021-75022/2019 - Dated:- 9-1-2019 - Shri P.K.Choudhary, Member (Judicial) And Shri Bijay Kumar, Member (Technical) Shri Dr. Samir chakraborty, Sr. Adv Shri Abhijit Biswas for the appellant(s) Shri D. Aaldar,, AC(AR) for the Respondent (s) ORDER Per Shri Bijay Kumar The instant appeal have been filed by the appellant being aggrieved by Two orders-in-Original, both passed by the Commissioner of Central Excise Service Tax, Haldia Commissioner dated February 10, 2009 and October 9, 2009 respectively (hereinafter referred to as the said impugned order ). By the said impugned order the Commissioner has confirmed, as alleged irregularly availed Cenvat Credit, duty demand of ₹ 34,61,35,102/- and ₹ 14,75,60,088/- respectively under Rule 12/Rule 14 of the Cenvat Credit Rules, 2002/2004( hereinafter referred to as the Cenvat Credit Rules ) read with the proviso to Section 11A(1)/11A(2) of the Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on ore concentrates which is factually incorrect and patently illegal. It was submitted that the M/s TSH has paid the order as per the adjudication order passed by the Adjudicating Authority which was upheld by the ld. Commissioner (Appeal). The appellant choose not to contest the same and started paying duty incompliance with the order passed by ld. Commissioner (Appeal). Neither the Department nor the appellant had raised objection and file appeal against the order passed by the Commissioner (Appeal). It was held in the order of Jurisdictional Assistance Commissioner as the Adjudicating Authority held and Commissioner (Appeal) at the first appeal appellate authority that conversion iron ore into ore concentrate amounting to manufactured and duty was accordingly paid by M/s TSL. On the basis of purchase of iron ore from M/s TSL on payment of duty the appellant has taken the Cenvat Credit within the framework of the Cenvat Credit Rules, 2002/2004. It was also contented by Ld Sr. Advocate that the finding of the Adjudicating Authority in the impugned order regarding the non payment of Central Excise Duty on iron ore concentrates in view of exemption allegedly granted by Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n law and required to be set aside in appeal. 7. Ld. Special Counsel on behalf of the appellant submitted that it is correct that the duty has been paid by the supplier of the goods TSL by the appellant. However, he said that such payment of duty was not legally required following the decisions of Hon ble Tribunal in case of Commissioner of Customs and Central Excise, JSR-BBSR-II. He placed reliance on para 7 of the impugned order; 7. Applying the test laid down by the Apex Court we observe that the process undertaken by the respondent remove extraneous, unwanted material from the ore and as such is devoid of guague which adheres to the blasted ores. From this it has been claimed by the Revenue that the constituents of the final products are distinctly different from that of the blasted ore. The Revenue then applying the Explantion Notes of HSN has come to the conclusion that iron ore has become a new commodity known as iron ore concentrates which is no more exempted from payment of duty as Notification No. 19/88-CE dated 1/3/88 has been rescinded by Notification No. 19/96-CE dated 23/7/1996. We find ourselves unable to agree with the Revenue that o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 003 dated 3st May, 2012, and accordingly the same has attained the finality. On being enquired about the order passed by the Ld. Adjudicating Authority and affirmed by the Appellate Authority, which has been accepted by the Department as referred above, how it can be said the duty was paid by M/s TSL at their own valuation without Authority of law, he has no answer. However, he has supported the order of the ld. Adjudicating Authority. 9. We have heard the rival submissions and perused the case records. 10. We find that the issue involved in this case is regarding the availment of the Cenvat Credit on the duty paid by the appellant from M/s TSL. It has not been disputed by the Department that the duty has been paid by the manufacturer of the goods in pursuance of the judicial pronouncement vide the order of the Ld. Adjudicating Authority and upheld by the Commissioner(Appeal). In the circumstances, we do not find any infirmity committed by the appellant within the provisions of the Cenvat Credit Rules, 2002-04 by availing such credit. Reliance is placed on the various decisions by the ld. Sr. Advocate wherein it has been held that in such a situation, De ..... X X X X Extracts X X X X X X X X Extracts X X X X
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