TaxTMI 
TaxTMI 
2022 (11) TMI 1069
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.... Cenvat Credit amounting to Rs.2,47,274/- against the assessee under Rule 14 of Cenvat Credit Rules, 2004 read with proviso to Section 11A(1) of Central Excise Act, 1944. ii) I order for recovery of appropriate interest on the above confirmed demand under provisions of Rule 14 of Cenvat Credit Rules, 2004 read with section 11AB of the C.Ex. Act, 1944. iii) I impose penalty of Rs.2,47,274/- under provisions of Rule 15 of Cenvat Credit Rules 2004 read with Section 11AC of the Central Excise Act, 1944." Order-in-Original No. 42/Wagle-II/2010-11 dated 30.08.2011 "ORDER i) I confirm Central Excise Duty amounting to (a) Rs.60,635/- and Rs. 7,616/- b) C.Ex.duty of Rs. 1,11,562/-(BED), Rs. 3,059/- (Cess) & Rs. 257/-(H.E.C) against the assessee under proviso to Section 11A(1) of Central Excise Act, 1944. ii) C.EX. duty amounting to Rs. Rs. 1,11,562/-(BED), Rs. 3,059/- (Cess) & Rs. 257/-(H.E.C) already paid is ordered to be appropriated. iii) I order for recovery of interest on the above confirmed demand under section 11AB of the Central Excise Act, 1944. iv) Interest of Rs. 21,542/- which is already paid is ordered to be appropriated. v) I impose penalty of Rs. 1,83,129/- un....
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....n them under the provisions of Rule 15 of Cenvat Credit Rules, 2004 read with Section 11AC of Central Excise Act 1944." Show cause notice dated 28.04.2011 "(i) The differential Central Excise duty on 5 FLTS (at serial No.1,4,6,7 & 8 to Annexure-A) of Rs.60,625/- and Rs.7616/- Cess on the goods cleared should not be demanded and recovered from them under provisions of Rule 4 of Central Excise Rules, 2002 read with the proviso to Section 11A (1) of the Central Excise Act, 1944. (ii) the Cenvat Duty paid in on the clearances of remaining 9 FLTS & one Stacker of amounting to BED Rs 1,11,562/- Cess Rs 3059/- & HE Cess Rs 287/-, as detailed below:- a) BED Rs 82,814/- and Cess Rs 2484 vide debit entry No 5695 dt.21.12.2010, and interest Rs.19767/- paid vide e-payment receipt No.00454 dt 4.1.201, b) BED Rs 8348/-, Cess Rs 167/- & H.Ed. Cess Rs.83/- vide debit entry No.6690 to 6692 dt.1.2.2011 and interest paid of Rs 1105/- vide e-payment receipt No 1081 dr.3.3.2011 and c) BED Rs.20,400/- duty, Cess Rs 408/s and H.Ed. Cess Rs.204 vide debit entry No. 7413 to 7416 dt.25.2.2011 and interest of Rs. 670/- vide e-payment receipt No.1079 dt.3.3.2011 should not be appropriated. (ii....
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....priate rate applicable on the date of clearance treating them as manufactured goods. * Subsequent to the clearance of the goods on payment of duty Revenue raised the objection that the processes undertaken by them did not amount to manufacture and hence has raised this demand. * As per annexure A to the show cause notice itself it is evident that after undertaking the processes, new commodity in the form of capacity, model has emerged. Accordingly the goods were cleared appropriately on payment of duty. * She prayed for setting aside of the impugned order. 3.3 Arguing for the Revenue, learned AR would rely upon the decisions in the following cases to argue that the process did not amount to manufacture:- * National Engineering Industries Ltd. [2018 (363) E.L.T. 1136 (Tri.-Del.)] * Kaytee Switchgear Ltd. [2009 (236) E.L.T. 132 (Tri.-Bang.)] * CCS Infotech Ltd. [2007 (216) E.L.T. 107 (Tri.- Chennai)] * Bharath Earth Movers Ltd. [2005 (191) E.L.T. 764 (Tri.- Bang.)] * P. C. Point [2000 (144) E.L.T. 181 (Tri.- Del.)] * Usha India Ltd. [2000 (122) E.L.T. 870 (Tribunal)] * Maschinenfabrik Polygraph (India) [1999 (110) E.L.T. 833 (Tribunal)] * International Tobacco ....
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....ls) has in the impugned order observed as follows:- "7. The product in the question is forklift. The appellants neither in their appeal memorandum nor during the course of personal hearing, have explained what process was undertaken on the forklift which amounts to manufacture. They have simply cited case laws and argued that what they have done on the forklifts does amount to manufacture. The appellants in their grounds of appeal referring to the case law of M/s.Kutty Flush Doors and furniture co, argued that the Hon'ble Apex Court had clarified that the whether a process amount to manufacture or not is pure question of fact depending upon the relevant material whether as a result of the process, a new and different article emerges having a distinct name, character and use. But, they have not given any details as to how old the forklift is, what materials were used, etc. Forklift is a big machinery used for lifting materials. It involves various parts and materials. Many parts wear and tear due to excessive usage. Repairing these parts or replacing these parts, would not change basic structure or basic features of the forklift. It still remains a fork lift. By repairing it, ....