2019 (6) TMI 15

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....esent case are that the appellant is a partnership firm and is engaged in mining and export of various grades of Iron ore falling under CHH 2601 of the First Schedule to the CETA, 1985. A show-cause notice dt. 15/01/2008 was issued on the basis of scrutiny of ST3 returns filed by the appellant wherein the appellant has taken the CENVAT credit of Rs. 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 por....

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....ce tax paid on outward transportation from the processing factory to the port of shipment is not eligible. 3. Heard both sides and perused records. 4.1. Learned counsel for the appellant submitted that the impugned order is not sustainable in law 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 not....

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....od from April 2007 to September 2007. Since the appellants have exported Iron ore and was unable to utilize the CENVAT credit of service tax paid on the input service of GTA had earlier applied for refund of unutilized CENVAT credit of Rs. 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....

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....t 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 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 producti....