- (1.) The writ petitions have been preferred questioning the order dated 2-9-2009 passed by the Govt. of India in revision and also for quashing the Order dated 25-4-2006 passed by the Commissioner, Central Excise, the Order dated 30-4-2007 passed by the Dy. Commissioner, Central Excise and the Order dated 26-9-2007 passed by the Commissioner (Appeals) in the matter of claim of Cenvat credit by the petitioner with respect to marble and granite. Petitioner has claimed that the process of cutting and polishing the granite and marble amount to manufacturing process falling within Chapter 25 of the Central Excise Tariff Act, 1985, hereinafter referred to as "the Act of 1985". The facts in all the writ petitions are similar, therefore, the facts in brief from one of the writ petitions viz., D.B. Civil Writ Petition No. 11870/2009 are being noted. It is averred that petitioner is a private limited company and is engaged in the business of sawing of marble blocks into slabs and tiles for sale in both indigenous and foreign market. The marble blocks are excavated by the mine owners in raw uneven shapes, which have to be properly sorted out and marked. Such blocks are then processed on single blade/wire saw machines using advanced technology to square them by separating waste material. Squared up blocks are sawned for making slabs by using the gang saw machine or single/multi block cutter machine. There, the sawn slabs are further reinforced by way of filling cracks by epoxy resins and fiber netting. The slabs are polished on polishing machine and then slabs are further edge cut into required dimensions/tiles as per market requirement in perfect angles by edge cutting machine and multi disc cutter machines. Finally, the polished slabs and tiles are buffed by shiner. Petitioner is also engaged in the business of purchasing rough granite slabs and out of them manufacturing cut and sized polished tiles. The machinery has cost the petitioner a sum of Rs. 750 lacs. Petitioner has claimed that the marble slabs and tiles manufactured fall under Chapter 25 of the Act of 1985 and the granite tiles produced fall under Chapter 68 of the Act of 1985. As per the Circular No. 3/92 issued by the Central Board of Excise & Customs on 22-6-1992, the marble slabs have been held to be dutiable. In accordance with the provisions contained in the Central Excise Act, 1944, hereinafter referred to as "the Act of 1944", and the Cenvat Credit Rules, 2002, hereinafter referred to as "the Rules of 2002" and the Cenvat Credit Rules, 2004, hereinafter referred to as "the Rule of 2004" petitioner has been availing the benefit of Cenvat credit accrued on receipt of capital goods, which has been utilised while clearing its finished goods. Petitioner had sought the clarification from the Excise Department on 19-9-2002. The Assistant Commissioner vide letter dated 10-10-2002 confirmed the entitlement of the petitioner to avail the Cenvat credit in respect of the capital goods. Consequently, the petitioner utilized the Cenvat credit.
(2.) The Apex Court has considered the matter regarding the applicability of the Central Excise on marble slabs and tiles in Aman Marble Industries (P) Ltd. v. Collector of Central Excise, 2005 1 SCC 279 and laid down that the cutting of marble blocks into slabs does not amount to manufacture, therefore, the Central Excise duty was not payable in respect of marble slabs and tiles.
(3.) Before 18-9-2003, the department as well as the petitioner were considering the slabs and tiles of marble as an excisable product and the petitioner was paying excise duty on foreign consumption. The position continued even after 18-9-2003. The petitioner presented a claim for refund of amount of Rs. 4,37,685/- covering the period of July 2004. The application was granted vide Order dated 12-5-2005 (P/8) passed by the Assistant Commissioner, Central Excise Division, Udaipur. However, the Commissioner Central Excise, vide his Order dated 25-4-2006 reviewed the Order dated 12-5-2005 passed by the Assistant Commissioner holding the same to be illegal. Simultaneously, a show cause notice was issued by the Deputy Commissioner on 9-5-2006 calling upon the petitioner to show cause as to why an amount of Rs. 4,37,229/- be not recovered. Petitioner submitted reply to the show cause notice dated 9-5-2006 (P/11). The Deputy Commissioner, Central Excise vide this Order dated 30-4-2007 confirmed the demand made by the show cause notice dated 9-5-2006. Being aggrieved by the order dated 30-4-2007, the appeal was preferred before the Commissioner (Appeals), who by order dated 26-9-2007 rejected the appeal filed by the petitioner. The Commissioner (Appeals) allowed the appeal filed by the department as against the Order dated 12-5-2005 passed by the Assistant Commissioner, Central Excise Division, Udaipur, vide Order dated 31-8-2006 and the Order dated 12-5-2005 was set aside. The revision petition was preferred by the petitioner against the Order dated 26-9-2007, which was registered as Revision Petition No. 195/23/08-RA. The same has been dismissed vide Order dated 2-9-2009.;