Full Judgment Text
C.A. NO. 8190 OF 2003 1
'REPORTABLE'
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8190 OF 2003
M/S. MARUTI SUZUKI INDIA LTD. ...Appellant
VERSUS
COMMNR. OF CENTRAL EXCISE, NEW DELHI ...Respondent
J U D G M E N T
R. F. NARIMAN, J.
Vide a show cause notice dated 30.08.2001 that was
served upon the appellant M/s. Maruti Suzuki India Limited
(then known as M/s Maruti Udyog Limited), the Department
gathered, by way of intelligence, that the appellant had
cleared inputs/ spares after processing, but duty was only
paid equivalent to the MODVAT credit taken on these inputs
before processing, and hence a substantial increase in the
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value of these inputs has escaped payment of duty on account
of value addition in such inputs after processing. More
specifically, what was alleged was that various spare parts
relatable to motor vehicles that were manufactured by the
appellant and were procured by it in the form of bumpers,
grills, etc., on which the process of Electro Deposition
Coating, namely, EDC took place (which was in the nature of
anti-rust so that the shelf life of the said bumpers, grills,
etc., would be generally increased) have escaped duty on
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account of the value addition of EDC.
The show cause demanded by way of differential duty a
sum of Rs.2,00,20,310.14/-. Since the period covered relates
to August, 1996, to March, 2001, we need to see the
provisions of Rule 57F of the Central Excise Rules, 1944
(hereinafter referred to as 'Rules') as it existed in three
different periods. For the purposes of this appeal, however,
there is no material change made post 20.02.1997 or post
31.03.2000 when this rule was twice amended. For the period
in question, the said rule together with its amendments is
set as hereinbelow: -
Rule for the period August 1996 to 28.2.1997
“57F(1) The inputs in respect of which a
credit of duty has been allowed under rule 57A-
(i) may be used in or in relation to the
manufacture of final products for which such
inputs have been brought into the factory; or
(ii) shall be removed, after intimating the
Assistant Commissioner of Central Excise having
jurisdiction over factory and obtaining a dated
acknowledgment of the same, from the factory for
home consumption or for export under bond.
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Provided that where the inputs are removed from
the factory for home consumption on payment of
duty of excise, such duty of excise shall be the
amount of credit that has been availed in respect
of such inputs under rule 57A.”
Rule for the period 1.3.97 to 31.3.2000
“57F(1)The inputs on which credit has been taken
may be used in or in relation to the manufacture
of final products.
(2) The inputs may be removed, after
intimating the Assistant Commissioner of Central
Excise concerned, in writing, for home
consumption or for export under bond.
(3) All removals of inputs for home
consumption shall be made -
(a) on payment of duty equal to the amount of
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C.A. NO. 8190 OF 2003 3
credit availed in respect of such inputs; and
(b) under the cover of invoice prescribed
under rule 52A.”
Rules for the period 1.4.2000 to 28.2.2001
“Explanation – When inputs or capital goods are
removed from the factory, the manufacturer of the
final products shall pay the appropriate duty of
excise leviable thereon as if such inputs or
capital goods have been manufactured in the said
factory, and such removal shall be made under the
cover of an invoice prescribed under rule 52A.”
By their reply to the show cause notice, the appellant
stated that there was no manufacture as understood in law,
but only the process of ED coating which did not, in any
manner, bring into being a new marketable commodity as such.
The bumpers, grills, etc., continued to be bumpers, grills,
etc., even after the process of ED Coating.
The learned Commissioner of Central Excise by its
order dated 28.02.2002 set out the show cause notice and the
reply in some detail and ultimately came to the conclusion
that on account of certain deductions, the duty that was
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evaded by the appellants herein was Rs.1,68,07,499/- instead
of Rs.2,00,20,310/- as stated in the show cause notice. As a
result, it proceeded to state in its order that the duty
evaded was Rs.1,68,07,499/- and proceeded also to impose an
equivalent penalty of the same amount with the caveat that 25
per cent of the penalty amount would be payable if it is paid
within 30 days of the date of communication of the order.
The appeal filed before Customs, Excise & Gold
(Control) Appellate Tribunal (hereinafter referred to as
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'CEGAT') was unsuccessful. The CEGAT after referring to the
arguments of both sides found as follows: -
5.1 We have considered the submissions of both
the sides. The facts which are not in dispute
are that the Appellants purchase inputs, avail
MODVAT Credit of duty paid thereon subject them
to the process of E.D. Coating and remove the
same on payment of duty equivalent to the amount
of MODVAT Credit availed by them initially at the
time of receipt of the inputs. It is thus
apparent that the inputs are removed from the
factory after undertaking the process of E.D.
Coating. In view of this the ratio of the
decision of the Larger Bench in the case of
Commissioner of Central Excise, Vadodra v. Aisa
Brown Boveri Ltd., 2000 (120) ELT 228 is not
applicable as the facts are different in as much
as the inputs were cleared as such in the said
matter. It has been emphasized by the learned
counsel for the appellants that words “as such”
were not mentioned in Rule 57-F at the relevant
time. In our view the absence of these words
does not make any difference as Rule 57-F of the
Central Excise Rules deals with the “Manner of
Utilization of Inputs and the Credit”. The said
Rules provides for the manner of use of inputs as
under:
(i) In or in relation to the manufacture of final
products for which such inputs have been brought
into the factory; or
(ii) Removed from the factory for home
consumption or for export under bond.
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5.2 Proviso to Rule 57-F(1) or
subsequently Sub-rule (3) of Rule 57-F provided
that where the inputs are removed for home
consumption on payment of duty, such duty of
excise shall be the amount of credit that has
been availed in respect of such inputs. It is
thus apparent that the Rule 57-F is in respect of
“such inputs” only. Further Rule 57 AB of the
Central Excise Rule provides for the removal of
inputs as such. We, therefore, hold that as the
Appellants have removed the inputs after
subjecting them to the process of E.D. Coating,
mere reversal of the MODVAT Credit availed in
respect of those inputs would not be payment of
appropriate amount of duty. The duty of excise
has to be discharged on the intrinsic value of
the goods as held by the Supreme Court in the
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C.A. NO. 8190 OF 2003 5
case of Sidhartha Tubes Ltd., Supra.
Accordingly, the Appellants have to discharge the
duty liability after including the cost of E.D.
Coating in the value of the goods. The
Appellants, however, would be eligible to take
the MODVAT Credit of duty paid on coating
material subject to the satisfaction of the
jurisdictional Excise Authority. In view of the
facts and circumstances of the present matter, no
penalty is imposable on the Appellants. We
accordingly, set aside the penalty imposed on the
Appellants.”
Shri V. Lakshmikumaran, learned counsel appearing for
the appellant, argued before us that CEGAT has lost sight of
the most fundamental aspect of the reply to the show cause
notice, namely, that ED coating did not lead to
“manufacture”. It is only after there is “manufacture” that
the input that is mentioned in Rule 57F(1) ceases to be an
input covered by the proviso to sub-rule (ii) thereof. It is
his short submission that the “inputs” being bumpers, grills,
etc., continued to be the same inputs for the purpose of the
proviso despite the fact that there may be value addition on
account of ED coating. He cited various judgments in support
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of his submissions which will be adverted to a little later
in this judgment.
On the other hand, Shri Guru Krishna Kumar, learned
senior counsel appearing for the Department, referred us to
the show cause notice and to various judgments in order to
show that the process of ED coating which led to value
addition, would, in fact, amount to “manufacture” and that
therefore, the “input” would not be the same input so as to
qualify under sub-rule(ii) on a mere reversal of MODVAT duty.
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The duty on the value addition would also therefore have to
be paid. In support of this proposition, he cited a number
of judgments which will also be adverted to a little later in
this judgment.
In addition, he referred us to Rule 57F (3) and Rule
57F(3A) which, according to him, would show that whenever
there is a value addition to an input, the said value
addition would also be liable to duty.
We have heard learned counsel for the parties. In our
view, on the true construction of Rule 57F(1), it would be
clear that the “input” that is removed from the factory for
home consumption is bumpers, grills, etc., being spare parts
of motor vehicles procured by the appellant before us.
According to us, ED coating which would increase the shelf
life of the spare parts and provide anti-rust treatment to
the same would not convert these bumpers, etc., into a new
commodity known to the market as such merely on account of
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value addition.
In one of the very first important judgments on the
Central Excises and Salt Act, 1944, namely Union of India v.
Delhi Cloth and General Mills Co. Ltd. [1977 (1) E.L.T. 199],
an important distinction was made between manufacture and
processing. It was held that processing and manufacture are
distinct concepts in law and only such processing as results
in a transformation, namely, that a new and different article
emerges having a distinct name, character or use, that excise
duty, which is only on manufacture, can be levied.
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The relevant portion of the judgment is as hereunder: -
“14. The other branch of Mr. Pathak's argument is
that even if it be held that the respondents do
not manufacture “refined oil”, as is known to the
market they must be held to manufacture some kind
of “non-essential vegetable oil” by applying to
the raw material purchased by them, the processes
of neutralization by alkali and bleaching by
activated earth and/or carbon. According to the
learned Counsel “manufacture” is complete as soon
as by the application of one or more processes,
the raw material undergoes some change. To say
this is to equate “processing to manufacture” and
for this we can find no warrant in law. The word
“manufacture” used as a verb is generally
understood to mean as “bringing into existence a
new substance” and does not mean merely “to
produce some change in a substance,” however
minor in consequence the change may be. This
distinction is well brought about in a passage
thus quoted in Permanent Edition of Words and
Phrases, Vol. 26, from an American judgment. The
passage runs thus:-
“Manufacture implies a change, but every
change is not manufacture and yet every
change of an article is the result of
treatment, labour and manipulation. But
something more is necessary and there must
be transformation; a new and different
article must emerge having a distinctive
name, character or use.”
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18. These considerations of the meaning of the
word “goods” provides strong support for the view
that “manufacture” which is liable to exercise
duty under the Central Excises and Salt Act, 1944
must be the “bringing into existence of a new
substance known to the market”. “But”, says the
learned Counsel, look at the definition of
“manufacture” in the definition clause of the Act
and you will find that “manufacture” is defined
thus:
Manufacture includes any process
incidental or ancillary to the completion
of a manufactured product.” S.2(f)
19. We are unable to agree with the learned
Counsel that by inserting this definition of the
word “manufacture” in S.2 (f) the legislature
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C.A. NO. 8190 OF 2003 8
intended to equate “processing” to “manufacture”
and intended to make mere “processing” as
distinct from “manufacture” in the sense of
bringing into existence of a new substance known
to the market liable to duty. The sole purpose
of inserting this definition is to make it clear
that at certain places in the Act the word
'manufacture' has been used to mean a process
incidental to the manufacture of the article.
Thus in the very Item under which the excise duty
is claimed in these cases, we find the words “in
or in relation to the manufacture of which any
process is ordinarily carried on with the aid of
power”. The definition of 'manufacture' as in
S.2(f) puts is beyond any possibility of
controversy that if power is used for any of the
numerous processes that are required to turn the
raw material into a finished article known to the
market the clause will be applicable; and an
argument that power is not used in the whole
process of manufacture using the word in its
ordinary sense, will not be available. It is
only with this limited purpose that the
legislature, in our opinion, inserted this
definition of the word 'manufacture' in the
definition section and not with a view to make
the mere “processing” of goods as liable to
excise duty.”
However, to buttress his submission Shri Guru Krishna
Kumar, learned senior counsel, referred us to various
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judgments laid down by this Court. First, he referred us to
' Sidhartha Tubes Limited v. Collector of Central Excise'
[2000 (10) SCC 194]. Since this judgment was also the only
judgment relied upon by CEGAT in the impugned order, it is a
little important to understand what exactly was held therein.
In this case, the appellant manufactured mild steel pipes and
tubes. At this stage, the product was known as “black pipe”.
Part of the production of the black pipe was then taken to a
separate shed in the appellant's factory premises and
galvanised. On facts in that case, the appellants had
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C.A. NO. 8190 OF 2003 9
themselves in their classification list separately declared
black pipes and galvanised pipes as their products. In such
a situation, this Court held that while the process of
galvanisation by itself may not amount to manufacture, yet
since it added to the intrinsic value of the product declared
by the appellants themselves separately as galvanised pipes,
the value of galvanised pipes would include the element of
the cost of galvanisation.
From this judgment, Shri Guru Krishna Kumar, learned
senior counsel, wanted us to accept as the ratio of the
judgment that duty must be paid on value addition despite the
fact that the process of galvanisation would not amount to
manufacture. Not only is this not the ratio of the judgment
as we see it but it would, in fact, conflict with other
judgments directly on the point.
In Commissioner of Central Excise, New Delhi v. S.R.
Tissues Pvt. Ltd. [2005 (186) E.L.T. 385], the question
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before this Court was whether on cutting and slitting of
jumbo rolls, several new products emerged, namely, table
napkins, toilet rolls, etc., and there being a value addition
of 180 per cent of the new products over the jumbo roll would
by itself lead to the irresistible conclusion that there is
“manufacture” and not mere “processing”. This was turned
down by this Court stating that jumbo rolls cannot
conveniently be used as such for household or sanitary
purposes. If therefore, for the sake of convenience, they
are required to be cut into various shapes and sizes so that
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they can conveniently be used as table napkins, etc., this
would not mean that the table napkins, etc., would be a new
product distinct from the jumbo roll. The end use of both
jumbo rolls and toilet rolls, etc., would remain the same,
namely, for household or sanitary use.
It was then held following Union of India v. J.G.
Glass Industries Ltd. [ 1998 (97) E.L.T. 5] that there is a
fundamental distinction between manufacture and processing.
On an aspect not adverted to in the Delhi Cloth and General
Mills Co. Ltd. case supra, this court held that where the
commodity already in existence is of no commercial use but
for a super added process, then on facts, there may be
manufacture.
In the present case, it is clear that bumpers and
grills are most certainly of commercial use in themselves
whether the process of ED coating is applied or not.
Importantly, this Court laid down that value addition
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without any change in name, character or end use of goods
cannot possibly constitute criteria to decide as to what is
manufacture.
This court said in this behalf: -
“21. Lastly, in the instant case, the
Commissioner as an adjudicating authority has
held that there was a value addition of 180%. He
found that jumbo rolls of tissue papers were
purchased by the assessee @ Rs.30/- to Rs.70/-
per kg. and the final product i.e. the toilet
tissue paper was sold by the assessee @Rs.85/- to
Rs.100/- per kg. And, therefore, there was a
value addition of around 180% i.e. between the
range of Rs.30/-to Rs.85/- per kg. This finding
of the Commissioner is erroneous. Under the
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Excise law, Value addition based on a process is
certainly a relevant criteria to decide as to
what constitutes “manufacture”. Such value
addition should be on account of change in the
nature or characteristics of the product. In the
present case, as stated above, there is no change
in the nature or characteristics of the tissue
paper in the jumbo roll and the nature and
characteristics of the tissue paper in the table
napkin, facial tissues etc. Therefore, without
such change in the nature or characteristics of
the tissue paper, value addition on account of
transport charges, sales tax, distribution and
selling expenses and trading margin cannot be an
indicia to decide what is manufacture. Thus,
value addition without any change in the name,
character or end-use by mere cutting or slitting
of jumbo rolls cannot constitute criteria to
decide what is “manufacture”.
22. In the case of Decorative Laminates
(India) Pvt. Ltd. v. Collector of Central Excise,
Bangalore reported in 1996 (86) E.L.T. 186, this
Court held that the process of application of
phenol resin on duty paid plywood under 100% heat
amounts to manufacture and in that connection
observed that value addition and separate use are
also relevant factors which the Courts should
consider in deciding the applicability of Section
2(f) of the Act. Therefore, value addition based
on price difference only without any change in
the name, character or end-use is a dangerous
criteria to be applied in judging what
constitutes “manufacture”. Lastly, the end-use
in both the entries 4803 & 4818.90 is the same,
namely, for sanitary or household purposes. In
the circumstances, value addition criteria as
applied by the Commissioner is erroneous.”
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Shri Guru Krishna Kumar, learned senior counsel, also
cited two other decisions in support of the proposition that,
in fact, manufacture had taken place on the facts of the
present case. One such decision, namely, Brakes India
Limited v. Superintendent of Central Excise and others [1997
(10) SCC 717] dealt with brake lining blanks. It was found
on facts that these brake lining blanks purchased by the
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C.A. NO. 8190 OF 2003 12
appellant could not be used as brake linings by themselves
without the process of drilling, trimming and chamfering.
This judgment has been distinguished in para 13 of the
judgment which has been cited above, namely, Commissioner of
Central Excise, New Delhi v. S.R. Tissues Pvt. Ltd. [2005
(186) E.L.T. 385]. Unlike the facts in the Brakes India
Limited judgment, on the facts here, bumpers, grills, etc.,
are of commercial use and liable to duty as such, even
without any ED coating.
Shri Guru Krishna Kumar, learned senior counsel, then
cited Siddhartha Tubes Ltd. v. Commissioner of Customs &
Central Excise, Indore (M.P.) [(2005) 13 SCC 559]. This case
again concerned manufacture of galvanised pipes. This court,
in a very significant passage, stated:
“At the outset, we may state that value is the
function of price under section 4(4)(d)(i) of the
Act. The concept of "valuation" is different from
the concept of "manufacture". Under section 3 of
the Act, the levy is on the manufacture of the
goods. However, the measure of the levy is the
normal price, as defined under section 4(1)(a) of
the Act. It is not disputed that galvanization as
a process does not amount to manufacture.
However, on facts, it has been found by the
commissioner that the process of galvanization
has taken place before the product is cleared
from the place of removal, as defined under
section 4(4)(b). Further, on facts, the
commissioner has found that galvanization has
added to the quality of the product. It has
increased the value of the pipes. Hence, the
costs incurred by the assessee for galvanization
had to be loaded on to the sale price of the
pipes. Therefore, the cost had to be included in
the assessable value of MS galvanized pipes. We
do not find any error in the reasoning of the
adjudicating authority.”
JUDGMENT
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C.A. NO. 8190 OF 2003 13
It is clear, as is apparent from the opening words of
Section 4 of the Central Excise Act, 1944, that there must
first be manufacture in order to attract the charging
section, namely Section 3 of the Central Excise Act, 1944
before one comes to valuation of goods under Section 4.
On the facts of the present case, we have first,
therefore, to arrive at whether there is “manufacture” at all
and only subsequently does the question arise as to if this
is so, what is the valuation of the processed goods and
whether duty is payable upon them. We have found on facts
that for the purposes of the proviso to Rule 57F(ii), the
inputs that were not ultimately used in the final product but
were removed from the factory for home consumption remain the
same despite ED coating and consequent value addition. We
follow the law laid down in S.R. Tissues Pvt. Ltd. 's case and
state that on account of mere value addition without more it
would be hazardous to say that manufacture has taken place,
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when in fact, it has not. It is clear, therefore, that the
inputs procured by the appellants in the present case,
continue to be the same inputs even after ED coating and that
Rule 57F(ii) proviso would therefore apply when such inputs
are removed from the factory for home consumption, the duty
of excise payable being the amount of credit that has been
availed in respect of such inputs under Rule 57A.
We now, come to the second argument made by Shri Guru
Krishna Kumar, learned senior counsel, namely, that from a
reading of Rule 57F (3) and 57F(3A), that Rule 57F(1) should
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be construed in such a way that the moment an input which
falls under the said Rule has a value addition on account of
processing it will cease to be an input covered by the Rule.
To appreciate this argument, we set out rule 57F(3) and Rule
57F(3A) which are as follows: -
(3) [Subject to sub-rule (3A) and
notwithstanding] anything contained in sub-
rule(1), manufacturer may after intimating the
[Assistant Commissioner of Central Excise] having
jurisdiction over the factory and obtaining dated
acknowledgment of the same, remove the inputs as
such, or after the inputs have been partially
processed during the course of manufacture of
final products, to a place outside the factory,-
(a) For the purposes of test, repairs,
refining, re-conditioning or carrying out
any other operation necessary for the
manufacture of the final products and return
the same to his factory, for,-
(i) further use in the manufacture of the
final product; or
(ii) removing the same without payment of
duty under bond for export; or
(iii) removing the same after payment of
duty for home consumption.
Provided that the waste, if any, arising in the
course of such operation is also returned to the
said factory;
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(b) for the purposes of manufacture of
intermediate products necessary for the
manufacture of the final products and return
the said intermediate products to his
factory, for,-
(i) further use in the manufacture of the
final product; or
(ii) removing the same without payment of
duty under bond for export; or
(iii) removing the same after payment of
duty for home consumption.
Provided that the waste, if any, arising in the
course of such operation is also returned to the
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said factory:
Provided further that the said waste need not
be returned to the said factory after the
appropriate duty of excise leviable thereon has
been paid.
(3A) Where a manufacturer intends to remove the
inputs as such, or after the inputs have been
partially processed during the course of
manufacture of final products to a place outside
the factory for the purposes specified in sub-
rule(3), the manufacturer shall do so after
debiting an amount equivalent to the amount of
credit of duty attributable to such inputs or the
inputs contained in such partially processed
inputs;
Provided that, notwithstanding anything
contained in rule 57A, the manufacturer shall be
eligible to avail of the credit of an equivalent
amount after the inputs or the processed goods,
as the case may be, have been received back in
the factory of the manufacturer;
Provided further that the manufacturer
shall not take credit under this sub-rule unless
the inputs or the processed goods, as the case
may be, are received in the factory under the
cover of the document on which such inputs or
partially processed goods were removed from the
factory.
It was conceded by Shri Guru Krishna Kumar, learned
senior counsel, that for several reasons, the said Rules
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would not apply to the facts here but that the drift of these
rules shows that where inputs are removed to a place outside
the factory when they are only partially processed, then when
they come back after the process, the value addition made on
account of such processing would be chargeable to duty under
sub-Rule 3A.
This argument cannot be accepted for two basic
reasons. First, we would be adding words to Rule 57F(1) to
the effect that value additions made to inputs covered by
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C.A. NO. 8190 OF 2003 16
sub-rule (ii) would also suffer duty even if there is no
manufacture. Second, sub-rule (3) and (3A) apply to an
entirely different factual scenario, as has been conceded by
learned counsel for Revenue, and it is only after all the
conditions under the said sub-rules are met that duty
attributable to inputs contained in partially processed
inputs would then become dutiable.
In view there of, we allow this appeal, set aside the
judgment of CEGAT and resultantly, the demand made in the
show cause notice as reduced by the Commissioner. We hasten
to add that the penalty imposed on the appellant has already
been set aside by CEGAT's order which part of CEGAT's order
will stand.
The appeal stands disposed of in the aforesaid terms.
..........................., J.
[ A.K. SIKRI ]
JUDGMENT
..........................., J.
[ ROHINTON FALI NARIMAN ]
New Delhi;
March 12, 2015.
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