TaxTMI 
TaxTMI 
2022 (11) TMI 1069
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....08.2011 "ORDER i) I confirm the demand of 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. 21,54....
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.... the provisions of Rules 14 of the Cenvat Credit Rules, 2004 read with Section 11AB of the Central Excise Act, 1944. (iii) Penalty should not be imposed on 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 ....
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....r which they followed the procedure as per Rule 16 by filing due intimation to the jurisdictional officer and took the credit of the duty paid pay them on the said goods. • These goods after undertaking due processes were cleared by them on payment of duty at the appropriate 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.)....
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....ure and yet every change of an article is the result of treatment, labour and manipulation. But something more was necessary and there must be transformation; a new and different article must emerge having a distinct name, character or use. Hon'ble Tribunal has also held in the case of Enfield India Ltd.vs CCE (1996 (88) E.L.T. 773 (Tribunal)) that the change or up gradation of the machine or change of some parts cannot be taken to be manufacture of a new product for excise purposes." 4.3 Commissioner (Appeals) 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 relev....
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....facture - Credit taken by appellant required to be reversed - Rule 16(2) of Central Excise Rules, 2002." 4.4 Annexure A to the show cause notice is reproduced below:- From the above annexure, it is quite evident that as a result of the processes undertaken, the goods as received were converted to different capacity and to different model number. They were even cleared to different customers. The adjudicating authority himself observed that the processes undertaken was "incidental and ancillary to the completion of the manufactured products". 4.5 This finding of the adjudicating authority needs to be dealt with in the light of Section 2(f) of the Central Excise Act, which reads as follows:- "2(f) "manufacture" includes any process, - (i) incidental or ancillary to the completion of a manufactured product; (ii) which is specified in relation to any goods in the Section or Chapter notes of the Fourth Schedule as amounting to manufacture; or (iii) which, in relation to the goods specified in the Third Schedule, involves packing or repacking of such goods in a unit container or labelling or re-labelling of containers including the declaration....