TMI Blog2020 (12) TMI 633X X X X Extracts X X X X X X X X Extracts X X X X ..... ted September 18, 2018 passed by the Tribunal or whether the order has been set aside. The order passed by the Tribunal was against the Department and, therefore, the Department should be aware as to whether any appeal has been filed or not. As the Department has not placed on record any decision setting aside the aforesaid order of the Tribunal, the present appeal filed by the Department deserves to be dismissed - Appeal dismissed. - EXCISE APPEAL NO. 50633 OF 2019 - FINAL ORDER NO. 51637/2020 - Dated:- 8-12-2020 - MR. JUSTICE DILIP GUPTA, PRESIDENT AND MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Shri O.P. Bisht, Authorized Representative for the Department Shri Hemant Bajaj, Advocate for the Respondent ORDER The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent, then the same in semi-finished form (pending only ovenizing and packing) is sourced from Unit-2 and is subjected to the aforesaid processes to convert the same into finished products and supplied to the customers. 4. The respondent took CENVAT credit of duty paid by Unit-2 and discharged the excise duty on the clearance to its customers, which were at enhanced prices on account of value addition done by it. Thus, the duty liability discharged on finished goods cleared by respondent was always more than the CENVAT credit availed by it on the semi-finished goods received from Unit-2. 5. The Department initiated an investigation into the availment of CENVAT credit by the respondent. It was alleged by the Department that the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... activity would amount to manufacture or not since excise duty was paid and accepted by Department while clearing the goods which were received from Unit-2 in semi-finished state. It was further held that the respondent paid excise duty more than CENVAT credit availed, and thus there is no loss to the Department. Consequently, the penalties imposed upon Unit-2 and M.D. Khatri were set aside by Tribunal. The relevant portion of the order is reproduced below: 8. After hearing both the parties, we are of the opinion as follows:- 8.1 That Appellant No.1 who was initially manufacturing the impugned goods, leased out the entire manufacturing set up of these products to Appellant No.2 w.e.f. 01.10.2012 except for the manufacture of Flux Cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 packing may not amount to manufacture but the apparent and admitted fact remains is that Appellant No.1 only had paid the Excise duty while clearing the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. - 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 a higher amount as duty at the time of clearance thereof, thus, it appears that he has complied with the provisions of said Rule 16. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion has been raised by Shri Hemant Bajaj, learned counsel appearing for the respondent that the appeal filed by the Department is liable to be dismissed for the reason that the issue raised in this appeal has already been decided by the Tribunal and the order passed by the Tribunal in favour of the respondent has not been set aside in any proceedings. 11. Learned authorised representative appearing for the appellant states that he is not aware whether any appeal was filed by the Department against the order dated September 18, 2018 passed by the Tribunal or whether the order has been set aside. 12. The order passed by the Tribunal was against the Department and, therefore, the Department should be aware as to whether any appeal has be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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