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2020 ] COMMR. OF C. EX. & SERVICE TAX, JAMMU & KASHMIR v. GRAVITA METALS 177
“and”. As clarified by the Board itself in 2006, such a requirement is not neces-
sary in the definition of manufacture as the same does not have any requirement
of cumulative satisfaction of conditions. That during the course of hearing, refer-
ence was also made to the recent Hon’ble Apex Court judgment in the case of
Servo-Med Industries Pvt. Ltd. v. CCE, Mumbai - 2015 (319) E.L.T. 578 (S.C.). In this
decision, the Hon’ble Apex Court was concerned whether sterilisation of syring-
es and needles amounts to manufacture. The Hon’ble Supreme Court has laid
down for clarity various principles. One of the tests laid down endorsing the
judgment in the case of Brakes India Limited (supra), was that of “test of no commer-
cial use without the process”. It was further explained that, when a different fin-
ished product comes into existence as a result of a process which makes the said
product commercially usable, the same leads to manufacture. It has been held
that there would be manufacture as in the Brakes India Limited (supra) case where
after the particular process they achieve a new use. That also in cases where the
goods are transformed into goods which are different or new after a particular
process, manufacture of goods can be said to have taken place. Thus, applying
either the analogy of Brakes India case or the test of new or different goods after a
particular process, or the activity of M/s. GM of making refined lead ingots and
lead alloy ingots, amounts to manufacture. He submits that, in fact the process of
sterilisation whereby on the surface of the syringes etc., bacteria had to be re-
moved was held not to be a process of manufacture in the Servo-Med case. The
Hon’ble Supreme Court observed that in such a case, each time the syringes were
sterilised there will be fresh manufacture, which made the proposition absurd.
The facts of the M/s. GM are more akin to the decision of the Hon’ble Supreme
Court in the case of Mamta Surgical (supra) where sterilisation of cotton for mak-
ing surgical cotton has been held to be a process of manufacture. Similarly, mak-
ing refined lead and lead alloys to exact specifications for battery manufacture
definitely amounts to manufacture. Ld. Counsel submits that in view of the
above detailed explanation and reasons, the order of the Ld. Commissioner is
incorrect, unjust, arbitrary to treat the process as not amounting to manufacture
whereas in the case of the appellants’ factory at Gandhidham in Gujarat, duty is
being collected right from 2004 onwards and even continues today on the same
activities, apart from number of other units all over India who are paying excise
duty on the same activities. He submits that the registration certificate has been
granted to M/s. GM, treating them as manufacturers and this position has not
undergone any change at the hands of the Department. It is further submitted
that the Notification No. 56/2002-C.E. itself lays down a procedure as per para-
graph 2C(e) thereof wherein, if the self-credit taken is wrong then within 15 days
of the next month, the jurisdictional officer has to direct the reversal of the credit.
In case the assessee fails to do so then the same becomes recoverable as errone-
ous refund. The provisions of clause 2C(e) are mandatory since ‘shall’ has been
used and thereafter, such an erroneous refund can be recovered under clause
2C(g). Therefore, once it is established that there is an erroneous refund after the
determination, within 15 days of the succeeding month, as laid down under
clause 2C(e), then and then only a show cause notice under Section 11A can be
issued. In the present case, the Commissioner himself records that no such pro-
ceedings have taken place in regard to the original credit taken and the same
have become final. Consequently, since the claims for credits have become final,
there is no question of any erroneous refund which can be recovered under Sec-
tion 11A. To support his contention he relied on the decision of the Hon’ble Apex
Court in the case of R.C. Tobacco Private Limited v. UOI - 2005 (188) E.L.T. 129
(S.C.) wherein it has been categorically held that refunds made under the notifi-
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