TMI Blog2019 (11) TMI 1578X X X X Extracts X X X X X X X X Extracts X X X X ..... e imported wear plates into various shapes and sizes as per the requirement of the customers by subjecting into various processes, like cutting, welding, drilling etc. resulting into different commodity having distinct character, name and use - Applying the principles of twin test in determining excisibility of a product when subjected to various processes as laid down in a series of judgments of the Hon ble Supreme Court namely, MOTI LAMINATES PVT. LTD. VERSUS COLLECTOR OF CENTRAL EX., AHMEDABAD [ 1995 (2) TMI 67 - SUPREME COURT] , UNION OF INDIA VERSUS DELHI CLOTH GENERAL MILLS CO. LTD. [ 1997 (5) TMI 49 - SUPREME COURT] , CADILA LABORATORIES PVT. LTD. VERSUS COMMR. OF CENTRAL EXCISE, VADODARA [ 2003 (2) TMI 65 - SUPREME COURT] , the Learned Commissioner concluded that in the present case, the processes i.e. cutting, drilling, welding etc. on the imported wear plates resulted into a new product which can no more be called as a mere wear plates, but having a distinct name, character and use as part of the machinery, which is marketable and is marketed by the appellant as parts of machines only. The Learned Commissioner has correctly arrived at the conclusion that the proces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... normal period and examine the admissibility of Cenvat credit of duty paid on the inputs on production of relevant documents - Appeal is allowed by way of remand. - E/1142/2008 - Final Order No. A/87445/2019-WZB - Dated:- 4-11-2019 - Dr. D.M. Misra, Member (J) and Shri Sanjiv Srivastava, Member (T) Shri Neerav R. Mainkar, Advocate, for the Appellant. Shri Anil Choudhary, DC (AR), for the Respondent. ORDER This is an appeal filed against Order-in-Original No. 11/2008-C, dated 18-8-2008 passed by the Commissioner of Central Excise, Nagpur. 2. Briefly stated the facts of the case are that the appellants are engaged in the manufacture of Wear Clips under brand name Endurafon and machinery falling under Chapter sub-heading 83 of Central Excise Tariff Act, 1985. Also, they are engaged in importing hard faced plates branded as Arcofon . Alleging that even though they carried out various processes on these imported plates, which resulted to manufacture , but failed to discharge duty on such manufactured goods, show cause notice was issued to them on 6-8-2007 demanding duty of ₹ 70,73,413/- for the period from July, 2002 to December, 2006 along with intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red plates; also he has categorically stated that since the appellant did not manufacture Arcofon wear plates in their factory accordingly, no duty was paid on the trading activity of the said customs duty paid imported wear plates. He has also disputing the Department s stand that Arcofon plates when subjected to the processes like, drilling, welding, cutting etc. resulted into manufacture on 24-10-2004 stated through a detailed representation explaining the processes carried out by them, which do not result into manufacture and placed reliance on various case laws in support of their argument. It is his contention that after their letter dated 24-10-2004, the Department did not initiate any action nor they were directed to discharge duty on the imported Arcofon plates but allowed to continue their trading activity. Hence, issuing demand notice in 2007 invoking extended period of limitation alleging suppression of facts and mis-statements etc. by the Department is bad in law, hence the demand confirmed for the extended period cannot be sustained. 5. Learned AR for the Revenue reiterates the findings of the Learned Commissioner. He has submitted that the disputed goods were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd sale invoices raised by the appellant on their customers observed that the appellant was required to supply the goods to the customers as per their design and requirement and the product sold by the appellant, is having a distinct size and shape different from that of imported wear plates . The Customers placed orders on the appellant for the impugned goods of various shapes and sizes required, for different types of machine parts and appellant had supplied the same as per the drawing and design mentioned in the respective purchase order by individual customer for its use as parts of a particular machine. Therefore, the activity of the appellant is not just mere trading but involved converting the imported wear plates into various shapes and sizes as per the requirement of the customers by subjecting into various processes, like cutting, welding, drilling etc. resulting into different commodity having distinct character, name and use. Further, he has recorded analyzing the purchase order for the customers of the appellant in which they have been given a distinct cut number, drawing number and name for their requirement for its use in a particular machine. He has also made the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e alleging suppression and mis-statement of facts. We do not find any basis in invoking extended period of limitation when the appellant in its endeavor to justify, not to discharge duty on imported Arcofon wear plates in the year 2004, explained his stand on the issue and the Department did not take any action as they were not clear about the issue of dutiability on such activity undertaken on the imported plates. Therefore, in our view, the demand should be confined to the normal period of limitation. Also, as the issue relates to interpretation of law, imposition of penalty on the appellant is unwarranted and cannot be justified. Further, we find that the appellant though claimed benefit of Cenvat credit on inputs before the adjudicating authority, but could not place requisite documents to satisfy the Commissioner about the quantum of credit admissible to them, accordingly the adjudicating authority has rejected their claim. The Learned Advocate vehemently argued that appropriate CVD have been discharged on Arcofon wear plates at the time of its import, therefore, for the process undertaken by the appellant if held to be manufacture, within the meaning of Section 2(f) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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