TaxTMI 
TaxTMI 
TaxTMI 
2019 (12) TMI 1695
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....d used the same in the manufacture of finished products. Since the finished products are mostly exported, the CENVAT Credit availed on inputs got accumulated and they filed cash refund claims of the accumulated credit under Rule 5 of the CENVAT Credit Rules, 2004. The appellant during the period November, 2008 and December, 2008 was sanctioned with a total cash refund claim of accumulated credit of Rs.10,16,26,652/ -. Initially the Assistant Commissioner on 12.8.2009 granted provisional refund claim of Rs.5,27,87,071/- on the basis of verification carried out by the Range Superintendent. Subsequently, the refund claim was finally sanctioned on 10.11.2009. The Department filed an appeal before the learned Commissioner (Appeals) against the said order of the adjudicating authority and the learned Commissioner (Appeals) vide order dated 15.12.2010 allowed the Revenue's appeal. Aggrieved by Commissioner's (Appeals) order, the appellant filed two appeals before this Tribunal bearing Appeal No. E/429/2011 and E/1824/2011. The appellants were also issued a protective demand notice on 25.03.2010 by the Department for recovery of the amount of refund allowed to the appellant. On adj....
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....ocess would amount to manufacture. He has laid emphasis on the expression "treatment" used in Note 9 to Chapter 38 in making the statement that the process undertaken by the appellant enhances the marketability of the fatty acid received by them from their other unit. In support, they have referred to the judgment of the Hon'ble Supreme Court in the case of CCE Vs. Air Liquide North India Pvt. Ltd. - 2011 (271) ELT 321 (SC) and Jindal Drugs Ltd. Vs. CCE - 2015-TIOL-857-CESTAT-MUM. Further, he has submitted that the distilled fatty acid exported by them after undertaking the distillation process, adds its value by approximately Rs.28,600/- PMT. Hence, there is also value addition to the input fatty acid after being subjected to the process of further distillation. 6. The learned Advocate on the issue of input output ratio submitted that there is no one to one correlation required of the inputs to the finished goods to consider cash refund of accumulated CENVAT Credit under rule 5 of the CENVAT Credit Rules, 2004 on account of export of goods. It is his contention that the manufacturing process undertaking by the appellant is a continuous process and physical one to one correlat....
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....e case of S.D. Fine Chemical's case (supra). Learned AR further submitted that the refund filed containing the report submitted by the Range Superintendent referring to input-output ratio could not be placed before this Bench even though directed because of the fact that during the course of transfer of file, on re-structuring of the organization, the same has been lost. In support, he has filed an Affidavit of the Assistant Commissioner, Raigad GST Commissionerate. 8. Heard both sides and perused the records. 9. The issue involved in the present appeals for consideration is whether the appellants are entitled to cash refund of accumulated CENVAT Credit availed on inputs used in the manufacture of finished goods exported under Rule 5 of the CENVAT Credit Rules, 2004 for the period October 2008 and November, 2008. It is not in dispute that the appellants received duty paid distilled fatty acid from their other unit at SION, Mumbai subjected it to further process of distillation and exported the same. They have claimed refund of accumulated CENVAT Credit paid on inputs after export of the finished goods following the laid down procedure under Rule 5 of CENVAT Credit Rules, 2004....
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....- "13. In the instant case, Helium gas was having different marketability, which it did not possess earlier and hence the gas sold by the appellant was a distinct commercial commodity in the trade, rendering it liable to duty under Chapter Note 10 of Chapter 28 of the Act. If the product/commodity, after some process is undertaken or treatment is given, assumes a distinct marketability, different than its original marketability, then it can be said that such process undertaken or treatment given to confer such distinct marketability would amount to "manufacture" in terms of Chapter note 10 to Chapter 28 of the Act." 11. The learned Commissioner (Appeals) heavily relied on the principle laid down in S.D. Fine Chemical's case (supra). We do not find the principle laid down in the said case is applicable to the present circumstances inasmuch as in the present case Note 9 of Chapter 38 of Central Excise Tariff Act, 1985 lays down specifically that any treatment that renders the product marketable to the consumer is to be considered as manufacture. This deemed clause was not present in the old Tariff, which was before the Tribunal in S.D. Fine Chemcial's case, therefore, the rati....