Page 304 - ELT_1_1st April 2020_Vol 372_Part

190 EXCISE LAW TIMES [ Vol. 372

appellant therein vis-à-vis the product manufactured by the other manufac-
turer.
5. In view of the decision of this Court in the case of Damodar J. Malpani
(supra), we deem it fit to set aside the impugned order of the Tribunal and
remand the matter back to the Commissioner (Appeals) for considering
whether the process being followed by the manufactures, viz., M/s. Anand
Engineering Works and M/s. Santha Raghu Industrial Products, Coimba-
tore, who were the assessees in the Order-in-Original dated 19th December
1991 passed by the Assistant Collector of Central Excise, Dindigul and Or-
der-in-Original dated 29th November 1996 respectively is the same as being
followed by the appellant herein who is relying upon the said decisions.
The Commissioner (Appeals) shall thereafter determine as to whether the
product manufactured by the other two manufacturers whose goods were
classified under sub-heading 4016.99. The Commissioner (Appeals) will
thereafter consider the question of classification of product being manufac-
tured by the appellant vis-à-vis the manufacturers in the aforesaid cases.
6. The appeals are allowed accordingly with no order as to costs.”
20. We find that M/s. GM is located in the State of Jammu & Kashmir
and working under Notification No. 56/2002-C.E., dated 14-11-2002 wherein the
duty paid through PLA is entitled as credit to M/s. GM and to denial of credit to
M/s. GM has resulted in discrimination when compared to other manufacturers of the
same goods by same process. Moreover, in their own unit, located in Gandhidham
(Gujarat) the benefit is extended. In the light of the above observation, we hold
that there should be uniformity in the stand taken by the Revenue and there should be no
discrimination in the case in hand and the other cases. In view of the fact that the Rev-
enue itself has admitted that activity undertaken by the appellant amounts to
manufacture, therefore, we hold that activity undertaken by M/s. GM cannot be dis-
criminated.
21. As regards the issue framed at (c) whether the appellant has been
treated as manufacturer or not, in terms of exemption notification under Cus-
toms Notification No. 96/2009-Cus.
We find that M/s. GM were importing unrefined lead and after manu-
facturing, were exporting refined lead and alloy ingots and availing benefit of
Customs exemption Notification No. 96/2009-Cus. Therefore, it is recognised
that there is a process of manufacture when making refined lead from unrefined
lead even as per the Customs authorities, read with the Import Export Policy, the
FTP requires to bring into existence a new product having a distinct name, char-
acter and use, basis which the advance licences were granted to M/s. GM. There-
fore, it is clear that even from this evidence, the process of making the refined
lead and lead alloy ingots amounts to manufacture. Therefore, we hold that the
process undertaken by M/s. GM amounts to manufacture in terms of exemption
notification under Customs Notification No. 96/2009-Cus.
22. As regards the issue (d) whether the Ld. Adjudicating Authority is
right to drop the demand on account of Cenvat credit utilised for payment of
duty or not. We find that M/s. GM has utilised Cenvat credit of inputs for pay-
ment of duty on their final product. The case of the Revenue is that as the goods
manufactured by M/s. GM are exempted from payment of duty therefore, they
are not entitled for Cenvat credit. We find that a similar issue came up before the
Hon’ble High Court of Bombay in the case of Ajinkya Enterprises (supra) wherein
the Hon’ble High Court has held that in case of activity does not amount to
EXCISE LAW TIMES  1st April 2020  352