Custom, Excise & Service Tax Tribunal
M/S. Dcm Engineering Products vs Commissioner Of Central Excise on 19 November, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Excise Appeal No. 3761 of 2005 - EX[DB]
[Arising out of Order-In-Original No. 115/CE/JAL/2005 dated 31.08.2005 passed by Commissioner of Central Excise, Chandigarh]
For approval and signature:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
Hon'ble Mr. Rakesh Kumar, 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?
M/s. DCM Engineering Products Appellants
Vs.
Commissioner of Central Excise. Respondent
Chandigarh Appearance:
Shri B.L. Narasimhan, Advocate for the Appellants Shri B B Sharma, DR for the Respondent CORAM:
Hon'ble Ms. Archana Wadhwa, Member (Judicial) Hon'ble Mr. Rakesh Kumar, Member (Technical) Date of Hearing /decision: 19.11.2013 Final ORDER NO. A/ 58456 /2013-Ex(DB) Per Archana Wadhwa (for the Bench):
The appellants are engaged in the manufacture of rough (unmachined) iron casting as per the specification of their customers. The issue in the present appeal is as to whether the value of pattern supplied to them by their customers is required to be added in the value of the casting, on pro-rata basis. The demand stand raised against them for the period December, 1996 to August, 1998 by way of issuance of show cause notice dated 11.9.01, i.e. by invoking the longer period of limitation.
2. Learned advocate Shri B.L. Narasimhan, appearing for the appellant fairly agrees that the issue on merits stand decided against them by the Larger Bench decision of the Tribunal in the case of Mutual Industries Ltd. vs CCE [2000 (117) ELT 578(Tri)]. However, he assails the demand on the point of limitation.
3. Elaborating his arguments, learned advocate submits that earlier also a show cause notice was issued to them on 3.2.97 raising demand of duty on the identical ground of inclusion of value of patterns in the value of casting for the period March, 1993 to November, 1996, i.e. by invoking the extended period of limitation. The said demand was confirmed by the adjudicating authority. However, on appeal Tribunal vide its Final Order No. 110/02 A dated 26.3.02 set aside the confirmation of demand falling outside the limitation period by observing as under:-
4. We have considered the submissions of both the? sides. The question whether the cost of the pattern supplied by the customers is to be included in the assessable value of the finished product has been settled by the Larger Bench in the case of Mutual Industries Ltd. It was held by the Larger Bench that since the product cannot be manufactured without the use of the mould, the money value that is attributed to the use of mould should also be reckoned for finding out the duty paid on the finished products. But we find substance in the submissions of the learned Advocate for the Appellants that the extended period of limitation is not invokable in the present matter. It has not been controverted by the Department that in the price list submitted by the Appellants, the Purchase Order numbers were duly mentioned and the copies of Purchase Orders were also enclosed with the price list. A perusal of the Purchase Order clearly reveals that it contained details about the payment made for the tools and the same will be maintained by the Appellants in proper condition during the tenure of the Order and would be returned to the customers on demand or on completion of the Order. The Supreme Court has held in the case of National Radio and Electronics Ltd. (supra) that the larger period of limitation under Section 11A of the Act is not invokable when the assessee has furnished the copies of the contract for the sale of the computers and this contract showed the entitlement of the assessee to collect charges for maintenance during the warranty period. It was observed by the Supreme Court in the said decision an application of mind by the Excise Authorities concerned would have revealed to them that the Appellants were entitled to collect such charges. There was no suppression in this behalf by the Appellants. Further, it is not in dispute that the show cause notice came to be issued only on the basis of examination of the price list submitted by the Appellants. The learned Advocate has relied upon three decisions of the Tribunal, in which it has been held that where the statutory documents are relied upon in the show cause notice, larger period is not invokable. Following the ratio of these decisions, the demand of Excise duty for the extended period is set aside. The Adjudicating Authority will recompute the demand of duty, which is within the specified period of six months prior to the date of issue of show cause notice in terms of Larger Bench decision in the case of Mutual Industries Ltd. and such demand shall be payable by the Appellants. The Appeal is deposed of in these terms.
4. He further submits that said order of the Tribunal stand upheld by the Honble Supreme Court and when the appeal filed by the Revenue was rejected vide its order dated 13.9.2002.
5. Accordingly, it is the contention of the learned advocate that in any case and in any view of the matter, the appellant having been served with the show cause notice in the year 1997 for the earlier period Revenue was aware of the entire facts and as such, demand raised in the present case on 11.9.2001 for the earlier period December, 1996 to August 1998 is not sustainable. He also refers to Tribunals decision in the case of JBM Tools Ltd. vs. CCE Delhi Final Order No. 58156 -58158 /2013 dated 6.9.13, wherein on identical grounds the Tribunal held on the issue of extended period as under :
3. Ld. Advocate fairly agrees that the issue stands decided by the larger bench in the case Mutual Industries Ltd. vs. CCE-2000(117) ELT 578 (Tri.-LB). He assailed the impugned order on the point of limitation by submitting that there was contrary decisions during the relevant period, the law was not clear which subsequently was declared against the assessee by the larger bench. As such, he submits that when there were conflicting decisions of the Tribunal which is an expert body, the appellant cannot be saddled with any malafide intent or suppression or mis-statement of facts. For the purpose, he draws our attention to the various decision of the Tribunal wherein benefit of limitation stands extended to the assessees, by observing that there were contrary decisions of the Tribunal. Some of the decisions stand confirmed by the Supreme Court.
6. Accordingly, he prays for allowing the appeal on the point of limitation.
7. After hearing the learned DR and after taking into consideration the Tribunals decision in the appellants own case as also the recent decision of the Tribunal in the case of JBM Tools Ltd, we find no justification for invokation of longer period of limitation.
8. Accordingly, the impugned order is set aside and appeal is allowed on the above point.
(Dictated and Pronounced in the open court)
( Archana Wadhwa ) Member(Judicial)
( Rakesh Kumar ) Member(Technical)
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