ORDER
S.S. Sekhon, Member (Technical)
1. This appeal filed by Revenue is against the following finding of the Commissioner –
“Further as per Rule 57R(1) credit of specified duty on the capital goods shall not be allowed if such capital goods are used exclusively for production of a final product which is exempt from the whole of the duty of excise leviable thereon, The goods in question are a warping machine.
Chapter Note 1 of Chapter 52 reads as follows :
“In relation to products of heading Nos. 52.03 and 52.04, sizing, beaming, warping, wrapping, winding or reeling, or any one or more of these processes, or the conversion of any form of the said products into another form of such products shall amount to ‘manufacture’. The duty on sized yam shall be charged on the basis of its weight before sizing.”
This has been relied upon by the appellants, but has not entered into the discussion recorded by the original authority.
I have examined the matter, I find that in the face of the chapter note 1 mentioned herein above, which has been incorporated in the Tariff, there is no other way but to accept that warping of yarn is a “process of manufacture of yarn” and in that sense the warping machine is used for “producing or processing” of yam as envisaged under Rule 57Q and that it cannot said to be used exclusively for producing of a final product which is exempt from whole of duty of excise leviable thereon as stipulated under Rule 57R(1). It has to be noted that yarn does pay the duty at the fabric stage. I find that the adjudicating authority fell into a serious error in not giving due consideration to Chapter Note 1.”
On the grounds –
“1. It is accepted fact and settled practice that Central Excise duty on cotton yarn is charged at spindle stage, where the fully manufactured yarn is coming into existence.
2. The warping machine is used for warping processes and warped yarn ultimately used in the manufacture of fabrics which is exempted from payment of Central Excise duty. This warping process is always undertaken on fully manufactured yarn for the manufacture of fabrics ie. before weaving and in the instant case fabrics are cleared at NIL rate of duty or exempt from payment of duty being unprocessed.
3. In this case cotton fabrics which are to be considered as finished goods are cleared at NIL rate of duty and as such credit taken on warping machine which is in turn used for the manufacture of fabrics which are exempted cannot be allowed under Rule 57R(1) of C. Ex. Rules, 1944.”
2. After hearing both sides and considering the material on record it is found –
a) The process of warping is a process of manufacture as per Chapter note 1 to Chapter 52, therefore a machine used for warping would be a machine used in the manufacture of yarn if this yarn is dutiable. As to what happens to the yarn warped, is not relevant in determining the eligibility to Capital goods credit.
b) There is no infirmity found in Commissioner (Appeals) order. The grounds taken are totally irrelevant and ignore the process and law on manufacture of the commodity in question.
3. Appeals filed on irrelevant grounds cannot be upheld when entity is eligible for capital goods credit. Revenue’s appeal is rejected.
(Pronounced in Court)