Custom, Excise & Service Tax Tribunal
M/S. Anutone Acoustics Ltd vs Commissioner Of Central Excise, ... on 10 April, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. E/944/2012-Mum. (Arising out of Order-in-Original No. 90/BR-90/Th-I/2012 dated 21.02.2012 passed by the Commissioner of Central Excise, Thane-I ) For approval and signature: Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. P.K. Jain, Member (Technical) ============================================================
1. Whether Press Reporters may be allowed to see :
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy :
of the Order?
4. Whether Order is to be circulated to the Departmental :
authorities?
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M/s. Anutone Acoustics Ltd.
:
Appellant
VS
Commissioner of Central Excise, Thane-I
:
Respondent
Appearance
Shri S. Raghu, Advocate for Appellant
Shri B.s. Meena, Additional Commissioner (A.R) for respondent
CORAM:
Mr. Ashok Jindal, Member (Judicial)
Mr. P.K. Jain, Member (Technical)
Date of hearing : 10/04 /2013
Date of decision : 10/04/2013
ORDER NO.
Per : Ashok Jindal
The appellants are in appeal against the impugned order demanding duty, interest and penalty by denying the input credit on the inputs secured by them. During the period October, 2006 to March, 2009 on the premises that activity undertaken by the appellant does not amount to manufacture. A redemption fine of Rs.94 lakhs was also imposed.
2. Heard both sides.
3. It is contended by the Ld. Counsel by the appellant that they applied for the registration in the month of August, 2006. On their application a query was raised by the jurisdictional Dy. Commissioner of Central Excise, the same was replied and after visit of the factory of the appellant of the premises by the concerned officer and understanding the activity undertaken by the appellant, the registration was granted and after granting the registration they procured the inputs and took credit and clear their final product on payment of duty. Therefore, it is the contention of the revenue that activity does not amount to manufacture, they have already paid the duty on their final product and same may be treated as reversal the Cenvat Credit availed by them on the inputs as held by this Tribunal in the case of Ajinkay Enterprises Vs. Commissioner of Central Excise, Pune-II reported in 2013 (288) E.L.T. 247 (Tri.-Mumbai).
4. On the other hand Ld. AR opposed the contention of the Ld. Counsel and submitted that the activity of cutting and packing undertaken by the appellant does not amount to manufacture and at the time of visit there was no activity being undertaken by them. Therefore, the appellant has misrepresented to the department for seeking registration.
5. Considering the submission made by both the sides, we find that after explaining the process is to be undertaken by the appellant, the registration was granted and appellant was procuring inputs on payment of duty and credit of the same has been taken by them. After doing process, the appellants are clearing the goods on payment of duty. During the period October, 2006 to March, 2009 no audit was taken place at the premises of the appellant whether the activity amounts to manufacture or not when the registration has been granted to the appellant. Therefore, the appellants are entitled for input credit on the inputs and at the same time we also find that appellants are clearing finished goods on payment of duty. In this case, admittedly Show Cause Notice has been issued by invoking the extended period of limitation. As the activity undertaken by the appellant was in the knowledge of the department, the extended period of limitation is not invokable Further, we find that as per the decision of this Tribunal in the case of Ajkaya Enterprises (Supra) wherein this Tribunal held that although the activity undertaken by the appellant does not amount to manufacture but when they have cleared their finished product on payment of duty, the same may be treated as reversal of Cenvat Credit availed on inputs.
6. With this observation we hold that appellants are not require to reverse the Cenvat Credit as they have already paid duty on their clearances and also hold that the appellants are having a strong case of limitation also. Therefore, we, set aside the impugned order and allow the appeal with consequential relief if any.
(Dictated in court.) (P.K. Jain) Member (Technical) (Ashok Jindal) Member (Judicial) Sm ??
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