Custom, Excise & Service Tax Tribunal
Tata Motors Ltd vs Commissioner Of Central Excise, ... on 31 July, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. E/1546, 1552/2012-Mum. & E/88011,88651,88048 & 88951/2013-Mum. (Arising out of Order-in-Original No. 3 &4/CEX/2012 dt/ 31/7/2012 , OIO No. 04/P-III/COMMR/C.Ex./2012-13 dt. 29.5.2013 and OIO No. PUN-EXCUS-003-COM-006-13-14 dt.26.7.2013 passed by the Commissioner of Customs & Central Excise, Pune-III ) For approval and signature: Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. P.S. Pruthi, Member (Technical) ============================================================
1. Whether Press Reporters may be allowed to see :
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy :
of the Order?
4. Whether Order is to be circulated to the Departmental :
authorities?
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Tata Motors Ltd.
Kailash Vahan Udyog Ltd.
:
Appellant
Kailash Vahan Udyog Ltd.
Kailash Vahan Udyog Ltd.
Tata Motors Ltd.
Tata Motors Ltd.
VS
Commissioner of Central Excise, Pune-III
:
Respondent
Appearance
Shri Gajendra Jain Advocate, for Appellant
Shri S.G. Dewalwar, Additional Commissioner (A.R) for respondent
CORAM:
Mr. Ashok Jindal, Member (Judicial)
Mr. P.S. Pruthi, Member (Technical)
Date of hearing : 31/07/2014
Date of decision : 31/07/2014
ORDER NO.
Per : Ashok Jindal
The appellant M/s. Kailash Vahan Udyog Ltd. has filed these appeals against the impugned order and co-appellant M/s. Tata Motors Ltd. filed the appeals against the impugned orders of imposition of penalties on them.
2. As the issue involved in all the appeals is common, therefore all are disposed off by a common order.
2. The brief facts of the case are that M/s. Kailash Vahan Udyog Ltd. are engaged in the manufacture of motor vehicle falling under Chapter Heading 8704 of Central Excise Tariff Act on behalf of M/s. Tata Motors. The appellants had manufactured fabricated bodies on the duty paid chassis supplied by M/s. Tata Motors. The issue involved in this case is in respect of the valuation of motor vehicle fitted with bodies. Revenue is of the opinion that the applicants are liable to pay duty as per the provisions of Rule 10A of the Valuation Rules on the price at which the motor vehicles were sold by M/s. Tata Motors, but the appellants are paying duty under Rule 6 of Valuation Rules. Therefore, impugned proceedings were initiated against the appellant and differential duty is demanded as per valuation arrived at as per Rule 10A of the Valuation Rules and penalties on both the appellants were imposed. Aggrieved from the said order, the appellant are before us.
4. Heard both sides.
5. After hearing both the sides, we find that the issue came up before this Tribunal in the case of M/s. Hyva (India) Pvt. Ltd. Vs. Commissioner of Central Excise, Belapur reported in 2013-TIOL-166-CESTAT-MUM. wherein it was held that in such a situation the duty is payable on the valuation arrived as per Rule 10A of the Valuation Rules, 2000. Therefore, issue is of no more res integra, accordingly, on merits the issue has been decided against the appellant.
6. The Ld. Counsel for the appellant submits that the show cause notice dt. 1.2.2011 in appeal No. E/1552/12 has been issued by invoking extended period of limitation for the period April 2007 to September 2011. Therefore, the demand for the period April 2007 to December 2009 is barred by limitation. As appellant has written a letter dt. 23.4.2007 to the department clarifying that they are paying duty as per Rule 6 of the Valuation Rules and not as per Rule 10A as Valuation Rules. They have also filed regular returns with the department and it was not objected. The said defence of the appellant was objected by the A.R. on the premise that as per the statement of Shri H.K. Agarwal, Director Finance of the appellant has stated that they were paying duty in the case of M/s. Ashok Leyland Ltd. as per Rule 10A of the Central Excise Rules, 2000. Therefore, it was in the knowledge of the appellant that they are required to pay duty as per Rule 10A of the Central Excise Valuation Rules, 2000.
7. On this issue, we find that the appellant has written to the department on 23.4.2007 that they are paying duty as per Rule 6 of the Valuation Rules not as per Rule 10A of the Valuation Rules 2000 and they are also filing regular returns with the department and it was not objected. Moreover, the appellants have challenged the constitutional validity of Rule 10A of the Central Excise Valuation Rules before the Honble High Court of Bombay. In these circumstances, we hold that the extended period of limitation is not invokable and extended period is not invokable. Therefore, the demand of duty beyond the period of limitation is set aside and penalties on both the appellants before us are not imposable.
8. In these circumstances, we hold that the demand of duty is within the normal period of limitation is upheld.
9. We further find that another issue in this matter is that whether the appellants are required to pay Cess on automobile or not. The CBEC Circular vide Circular No.41/88 dated 31.8.1988, has clarified that the cess may continue to be levied and collected on the vehicles on the condition they are cleared from the premises of the manufacturers and no cess should be levied again in case the body on the chassis is built by an independent body builder on the cess paid chassis. In the case of S.M. Kannappa Automobiles P. Ltd. Vs. Commr. Of C. Ex., Bangalore reported in 2008 (224) E.L.T. 467 (Tri.-Bang.), the issue came up before this Tribunal and this Tribunal held that as the body builder are not required to pay cess. Cess paid on chasses in this case also on chassis M/s. Tata Motors have paid the cess. Therefore, we hold that the appellants are not required to pay cess as the body on cess paid chassis is built by the appellants. Therefore, demand of cess on automobile is set aside.
10. With these terms, the appeals are disposed of.
(Pronounced in court) (P. S. Pruthi) Member (Technical) (Ashok Jindal) Member (Judicial) Sm ??
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