TaxTMI 
TaxTMI 
2007 (8) TMI 542
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....d to Rs.30/- per sq. mtr. as per Rule 3(6)(i)(c) of the Cenvat Credit Rules, 2002. During the examination of the bills of entry, it was noticed that the appellants had misdeclared the Central Excise Tariff heading as 6807.90 (instead of 2504.21) with a view to avail credit to the extent of full CVD paid and overcome the restriction under the Cenvat Credit Rules. The bills of entry which were initially provisionally assessed, were finally assessed for the purpose of levy of CVD under CET sub-heading 2504.21; the Commissioner (Appeals) vide order dated 6-8-2004, set aside the assessment order dated 30-4-2004, with direction to the adjudicating authority to pass a speaking order; the Deputy Commissioner of Customs passed fresh order dated 31-3-2006, once again classifying the goods under CET sub-heading 2504.21 for the purpose of levy of CVD and directing finalisation of assessments under the above heading, rejecting the claim of the importers for classification under CET sub-heading 6807.90 for the purpose of levy of CVD. The Commissioner, vide order-in-appeal dated 27-4-2007, upheld the adjudication order, thus giving rise to appeal No. C/426/2007. 2. On the issue of manufac....
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....ity has been specifically covered by Chapter Heading 25.04 and when certain processes are applied to a commodity to make it marketable, it certainly amounts to manufacture and attracts duty under the above mentioned chapter heading. The Apex Court relied upon its earlier decision in Rajasthan State Electricity Board v. Associated Stone Industries, JT 2000 (6) S.C. 522 wherein it was held that excavation of stones from a mine and thereafter cutting and polishing into slabs did not amount to manufacture for the reason that no new and distinct commercial product came into existence, as the product still remained stone and thus its original identity continued, and held that the activity of cutting marble blocks into slabs did not amount to manufacture, set aside the majority order of the Tribunal which held that marble slabs fell for classification under Chapter Heading 25.04, and allowed the appeal of the company. As a consequence of holding that the activity does not amount to manufacture, levy of CVD is also not attracted for the reason that for determining levy of CVD under Section 3 of the Customs Tariff Act, it has to be imagined that the goods have been manufactured or produced ....
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.... fibre as processed and graded had a distinct character different from asbestos rock and the said item was covered within TI 22F of the Schedule to the erstwhile Central Excise Tariff and there was a liability to pay excise duty thereon. The appellants were also informed vide letter dated 17-8-1997 of the Ministry of Finance that the process by which the asbestos fibre was obtained was a process of manufacture and the said item fell within TI 22F. The consequence of this was that the demand of additional duty under Section 3(1) of the CTA was raised because the imported item, viz. asbestos fibre, was regarded as an article which was liable to excise duty under the Central Excise Act. Writ petitions were filed by the importers before the Delhi High Court; the Court dismissed the same, accepting the contention of the Revenue that the extraction or removal of asbestos fibre from rock amounted to manufacture and therefore excise duty was leviable and as a result thereof, additional duty under Section 3(1) of the CTA could be imposed on import. The appeals by special leave were first heard by a Bench of three Judges of the Apex Court which vide its decision reported in 1995 (78) E.L.T. ....
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....od concluded against the Revenue by the Hyderabad Industries decision cited supra (the goods in question were exempted at the relevant time from payment of Central Excise duty under Notification 75/84-C.E., dated 1-3-1984). 7. Since the process by which marble slabs are obtained from marble blocks does not amount to manufacture, as held in the case of Aman Marbles, the imported marble slabs cannot be subjected to countervailing duty in the light of the Hyderabad Industries and TISCO decisions cited supra. Since the appellants have already taken Cenvat credit of CV duty already paid, and are therefore not eligible to refund of CV duty, Customs appeal No. C/426/07 is required to be allowed only to the extent of holding that no countervailing duty is at all leviable on imported marble slabs. We order accordingly. 8. In the excise appeal, recovery of Cenvat credit is required to be set aside for the reason that the restriction contained in Rule 3(6)(i)(c) of the Cenvat Credit Rules, 2002 is not applicable in the facts of the case or alternatively, the credit taken is to be treated as a refund of excess CV duty paid and not to be treated as Cenvat credit, thus not attrac....