JUDGMENT K.A. PUJ, J. 1. THE appellant, Commissioner of Central Excise, Vapi has filed this tax appeal under Section 35G of the Central Excise Act, 1944, proposing to formulate the following substantial questions of law :- "[a] Whether the CESTAT is justified in the eyes of law in allowing the Cenvat Credit on the items viz. "Tooth Brush" which is not manufactured by the assessee but brought out from the open market and the same also not as an input of final product of "Tooth Paste" and the cost of Tooth Brush is also not added in the MRP? [B] Whether the CESTAT has justified in the eyes of law in setting aside a penalty which has been imposed upon the assessee for contravention of Cenvat Credit Rules, in respect of wrongly availment of Cenvat Credit on "Tooth Brush?" 2. HEARD Ms. Amee Yajnik, learned Senior Standing Counsel for the appellant-revenue and perused the orders passed by the authorities below. The respondent - assessee, M/s Prime Health Care Products is engaged in the manufacture of Tooth Paste falling under Chapter Sub Heading No.3306.10 of the Central Excise Tariff Act, 1985 and are availing modvat/ cenvat credit facility under Rule 57A of erstwhile Central Excise Rules, 1944 and Rule 57AB of the Central Excise Rules, 1944, now Rule 3 of the CENVAT Credit Rules, 2004. The respondent - assessee has availed cenvat credit of central excise duty paid on Tooth Brush bought from other manufacturers and is clearing their final product Tooth Paste along with Tooth Brush. It is the case of the revenue that the Tooth Brush is not an input of Tooth Paste and the cost of Tooth Brush is not added in the M.R.P. and hence, the assessee had availed cenvat credit of duty paid on Tooth Brush in contravention of the provisions of the Cenvat Credit Rules, 2004. It is the case of the revenue that the Tooth Brush is not an input of Tooth Paste and the cost of Tooth Brush is not added in the M.R.P. and hence, the assessee had availed cenvat credit of duty paid on Tooth Brush in contravention of the provisions of the Cenvat Credit Rules, 2004. Hence, after making necessary inquiry, a show cause notice was issued on 25.2.2003 proposing to disallow and recover from the assessee cenvat credit amounting to Rs.17,47,975/- plus Rs.37,094/-, making a total of Rs.17,85,069/-, wrongly taken/availed by the assessee on Tooth Brush for the period from March 2001 to October 2001 and December 2002, and also for penalty for contravention of the relevant Rules as well as the interest on the assessee as well as penalty on Shri M.M. Shah, Partner and Shri Kalpnath R. Mishra, Commercial Manager-cum-Authorized Signatory of the respondent - assessee. 3. THE said show cause notice came to be adjudicated upon by the Joint Commissioner, Central Excise and Customs, Daman on 30.11.2004, who disallowed and directed to recover the cenvat credit amounting to Rs. 17,85,690/-; imposed penalty of Rs.17,85,690/- and also charged interest at an appropriate rate. Penalty of Rs. 1,00,000/- was also imposed on Shri M.M. Shah, Partner and Rs.25,000/ - on Shri Kalpnath R. Mishra, Commercial Manager-cum-Authorized Signatory of the respondent - assessee. 4. BEING aggrieved and dissatisfied by the said Order in Original dated 30.11.2004, the respondent - assessee filed appeal before Commissioner (Appeals), Central Excise, Daman, who vide his order dated 1.6.2005 held that the demand of duty of Rs.17,47,975/- invoking extended period is not sustainable and demand of duty to the tune of Rs.37,094/- for the month of December 2002 is upheld. He has also reduced the penalty to Rs.37,094/- on the main concern as well as Rs.5,000/- and Rs.2,000/- on Shri M.M. Shah, Partner and Shri Kalpnath R. Mishra, Commercial Manager-cum-Authorized Signatory of the respondent - assessee, respectively. Being aggrieved by and dissatisfied with the said Order in Appeal, the assessee preferred appeal before the Central Excise and Service Tax Appellate Tribunal (the Tribunal) and the Tribunal vide its order dated 22.1.2009 allowed the cenvat credit by applying the ratio of the law declared by the Tribunal in the case of Lottee India Corporation Ltd., reported in 2008 (224) ELT 102 (Tri. Chennai) and others. 5. Chennai) and others. 5. IT is this order of the Tribunal which is under challenge in the present tax appeal. 6. WE have considered the submissions made by Ms. Amee Yajnik, learned Senior Standing Counsel appearing for the appellant - revenue. The Tribunal while disposing of the appeal, has observed that the combo-pack containing toothbrush reaches final stage of marketability only after the packet containing tooth brush is placed with the tooth paste and hence, cenvat credit in respect of tooth brush is admissible. The Tribunal further observed that re-packing, labelling etc. are amounting to process of packing and it would be considered manufacture and hence, packing two items together itself amount to manufacture and hence, it has to be held that credit is admissible. 7. WE have examined this reasoning of the Tribunal in view of the provisions contained in Cenvat Credit Rules, 2004. Rule 3(1) of the Rules says that a manufacturer or producer of final product or a provider of taxable service shall be allowed to take credit of items mentioned therein. The proviso further states that the cenvat credit shall be allowed to be taken of the amount equal to central excise duty ............ paid on any input or capital goods received in the factory of manufacture of final product. The word "input" is defined in Rule 2(k) which also includes accessories of the final products cleared along with final product. There is no dispute about the fact that on toothbrush, excise duty has been paid. The toothbrush is put in the packet along with the tooth paste and no extra amount is recovered from the consumer on the toothbrush. Considering the definition given in the Rules of "input" and the provisions contained in Rule 3, we are of the view that the Tribunal is justified in taking the view that the credit is admissible in the case of the respondent assessee. 8. THE view taken by the Tribunal is further supported by the provisions contained in Section 2(f) of the Central Excise Act, 1944 which defines the word "manufacture". It includes any process in relation to the goods specified in the Third Schedule, which includes packing or re-packing of such goods in a unit container. In the Third Schedule, at Serial No.38, under Heading - Sub Heading of Tariff Item, Entry No.3306, is in respect of tooth paste. It includes any process in relation to the goods specified in the Third Schedule, which includes packing or re-packing of such goods in a unit container. In the Third Schedule, at Serial No.38, under Heading - Sub Heading of Tariff Item, Entry No.3306, is in respect of tooth paste. Hence, the process of packing and re-packing the input, that is, toothbrush and tooth paste in a unit container would fall within the ambit of "manufacture" as defined under the Act and as such, the assessee would be entitled to claim cenvat credit on such input. In the above view of the matter, we are of the view that no question of law, much less any substantial question of law arises out of the impugned order of the Tribunal. Hence, we dismiss this appeal. Appeal dismissed.