Page 292 - ELT_1_1st April 2020_Vol 372_Part

178 EXCISE LAW TIMES [ Vol. 372
cation have no errors and hence, are not an erroneous refund, but benefit provi-
sionally granted. Consequently applying this ratio, where the self-credits have
attained finality and not dealt with as per the provisions of clause 2C(e), then
invocation of Section 11A does not arise. That, when there is a special procedure
laid down then the provisions of Section 11A cannot be invoked directly, but on-
ly by the procedure of clause 2C(e) to be followed. To support, he relied upon the
decision in the case of Shree Bhagwati Steel Rolling Mills v. CCE - (2016) 3 SCC 643
= 2015 (326) E.L.T. 209 (S.C.) and Hans Steel Rolling Mills v. CCE - (2011) 3 SCC
748 = 2011 (265) E.L.T. 321 (S.C.). Further, the provisions of Section 11A cannot
be invoked as has been done in the instant case since there is been no erroneous
refund under the provisions of the notification under clause 2C(e) read with
clause 2C(g).
Therefore, he prays that the impugned order is not sustainable and their
appeal is allowed.
10. With regard to the appeal filed by Revenue against the impugned
order, he submits that the Ld. Commissioner has rightly dropped the demand of
Cenvat credit. It is his submission that even assuming without admitting that
process does not amount to manufacture, the utilisation of credit to pay duty
would amount to reversal of credit. This position is well-settled by the Larger
Bench of the Tribunal in the case of Sterlite Opticals Technologies Limited v. CCE,
Vapi - 2012 (282) E.L.T. 392 (Tri. - Ahmd.). This position is also settled by the de-
cision of the Tribunal in the case of Exide industries Limited - 2016 (333) E.L.T. 101
(Tri. - Del.) following the decision of the Hon’ble Bombay High Court in the case
of Commissioner v. Ajinkya Enterprises - 2013 (294) E.L.T. 203 (Bom.). He submits
that the Ld. AR has relied upon the provisions of Section 5B of the Act that,
where the process does not amount to manufacture, the credit taken could be
legalised only if a notification is issued by the Central Board of Excise and Cus-
toms, in regard to the particular situation is also not well founded. It is clear that
the provisions of Section 5B can only be applied in case where there is no refund
of duty paid by the assessee on the final product is granted to the assessee and
was also not claimed by way of refund by the assessee. The appellants are work-
ing under the provisions of Notification No. 56/2002-C.E., as per the provisions
of the notification, are getting the refunds. Hence, their case cannot fall under
Section 5B of the Act. Moreover, even after considering the provisions of Section
5B and Circular No. 911/1/20 10-CX., dated 14-1-2010, relied upon by Ld. AR,
Tribunal in the case of Asian Colour Coated Ispat Limited v. Commissioner of Central
Excise, Delhi - 2015 (317) E.L.T. 538 (Tri. - Del.) has held that where there are addi-
tional facts to distinguish from an earlier judgment holding no manufacture, Sec-
tion 5B cannot be invoked. Further, following the earlier judgments especially in
Ajinkya Enterprises (supra), the Hon’ble Bombay High Court has held that there is
no necessity to again pay back the credit once it has been reversed earlier. There-
fore, he submits that the appeal filed by Revenue is liable to be rejected.
11. With regard to the appeal filed by M/s. GMI, it is his submission
that in the impugned order the adjudicating authority has demanded duty on
lead ingots made from scraps i.e. unrefined lead ingots and cleared to the raw
material supplier. He submits that as far as the M/s. GMI are concerned, they
had canvassed that no duty liability can be visited on them and, the demand
should only be raised on the raw material supplier. In support, he relied upon
the decision in the case of Aggarwal Rolling Mills v. CCE, New Delhi - 1997 (93)
E.L.T. 615 (Tri.-Delhi), Moon Chemicals v. CCE - 2007 (215) E.L.T. 434 (Tri.-
Chennai) and Bharat Industries v. CCE, Mumbai-V - 2008 (227) E.L.T. 281 (Tri.-

EXCISE LAW TIMES  1st April 2020  340