TMI Blog2019 (6) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... as input service - scope of SCN. HELD THAT:- It is undisputed fact that the appellant produced and exported iron ore which is classifiable under Chapter 2601 of CETA 1985 and hence excisable but attracts nil rate of duty under Notification No.4/2006 dt. 01/03/2006 - Further the finding of the Commissioner that the appellants are not manufacturers is not sustainable in law as held by various decisions of the court holding this activity as amounts to manufacture. Further, this finding that the processes undertaken by the appellant do not amount to manufacture is contrary to the grounds made in the show-cause notice and is beyond the scope of show-cause notice. Also, the Department has not challenged the finding of the Commissioner(Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 2,54,92,595/- during the period from April 2007 to September 2007 on the service of transportation of goods by road by a GTA for transportation of Iron ore from the factory /production area to the port of shipment considering the same to be outward transportation. The show-cause notice proposed to disallow the CENVAT credit on the service of transportation of goods by road by GTA up to the port on the ground that (i) Iron ore produced / manufactured is classifiable under CHH 26.01 of the CETA, 1985 and is exempt from duty of excise under Notification No.4/2006-CE dt. 01/03/2006 and hence not eligible for credit on input service; (ii) the appellant cleared Iron ore from the factory to the port of shipment for export and therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the same has been passed without properly appreciating the statutory provisions. He further submitted that the impugned order is contrary to the binding judicial precedent decided by the Tribunal, High Courts and the Supreme Court. He further submitted that the finding of the Commissioner in respect of the processes amounting to manufacture otherwise for the purpose of disallowing CENVAT credit is contrary to the grounds made out in the show-cause and hence beyond the scope of show-cause notice and therefore untenable in law. He further submitted that the finding of the Commissioner that Iron ore is classifiable under CHH 2601 and is exempt from payment of duty under Notification No.4/2006-CE dt. 01/03/2006 and hence not eligible for CEN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied for refund of unutilized CENVAT credit of ₹ 1,54,67,673/- under Rule 5 of CCR, 2004. The Asst. Commissioner of Central Excise, Bellary vide Order-in-Original No.40/2007 dt. 20/12/2007 held that in terms of Rule 6(1) of CCR 2004, the appellants are not eligible for CENVAT credit of input services. Aggrieved by the said order, appellant filed appeal and the Commissioner(Appeals) who vide his order dt. 14/01/2009 has held that the appellants are entitled to the CENVAT credit on the input service of GTA used for export of Iron ore but denied the refund of unutilized CENVAT credit on the ground of limitation. He further submitted that the Revenue has not challenged the order passed by the Commissioner(Appeals) dt. 14/01/2009 with respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ETA 1985 and hence excisable but attracts nil rate of duty under Notification No.4/2006 dt. 01/03/2006. Further we find that the finding of the Commissioner that the appellants are not manufacturers is not sustainable in law as held by various decisions of the court holding this activity as amounts to manufacture. Further we find that this finding that the processes undertaken by the appellant do not amount to manufacture is contrary to the grounds made in the show-cause notice and is beyond the scope of show-cause notice. Further we find that the eligibility of input and input service used in or in relation to the production or manufacture and clearance of goods which is otherwise exempt from duty, for the purpose of export is no longer re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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