Custom, Excise & Service Tax Tribunal
Mgi Coutier Exotech Industries Pvt. Ltd vs Commissioner Of Central Excise, ... on 27 June, 2012
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPLICATION Nos. E/S/537/12 & E/S/1277/12 APPEAL Nos. E/395/12 & E/859/12 (Arising out of Orders-in-Appeal No. PIII/RS/366/2011 dated 14.12.2011 and PIII/RS/66/2012 dated 29.2.2012 passed by Commissioner of Central Excise & Customs (Appeals), Pune-III) For approval and signature: Honble Mr. Ashok Jindal, Member (Judicial) and Honble Mr. P.R. Chandrasekharan, Member (Technical) ======================================================
1. Whether Press Reporters may be allowed to see : No 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 : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== MGI Coutier Exotech Industries Pvt. Ltd. Appellant Vs. Commissioner of Central Excise, Pune-III Respondent Appearance:
Shri M.P.S. Joshi, Advocate, for appellant Shri D.D. Joshi, Superintendent (AR), for respondent CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) and Honble Mr. P.R. Chandrasekharan, Member (Technical) Date of Hearing: 27.6.2012 Date of Decision: 27.6.2012 ORDER NO Per: Ashok Jindal The appellants are in appeal along with stay applications against the impugned orders wherein differential duty has been demanded on the charge of undervaluation as they have not cleared goods by valuing the same under Section 4A of the Central Excise Act, 1944.
2. The brief facts of the case are that the appellants are manufacturer of motor parts. These motor parts are cleared by them to their customers who are manufacturers of automobile. Some parts were cleared to the manufacturing division and some parts are cleared to the spare parts division. The appellants are paying duty on the transaction value under Section 4 of the Central Excise Act. The department is of the view that the clearances made to the spare parts division are liable to duty under Section 4A of the Central Excise Act as these goods are to be cleared on MRP basis. Therefore, show cause notices were issued for demand of differential duty along with interest and proposal of penalty under Section 11AC of the Act. Adjudication took place and the proposal of the show cause notice was converted into adjudication order. The same was confirmed by the lower appellate authority, therefore the appellants are before us.
3. On behalf of the appellants, it is contended that the appellants are clearing these goods to spare parts division in bulk/loose condition and on receipt of these spare parts, their customers do packing, labelling, relabeling and putting stickers of MRP and thereafter they are clearing the same on payment of central excise duty as per Section 4A of the Central Excise Act. Therefore, they are not required to pay duty as per Section 4A of the Central Excise Act. To contend this, they have relied on the decision of this Tribunal in the case of Malhotra Shaving Products Pvt. Ltd. vs. CCE, Hyderabad reported in 2010 (250) ELT 118. On the other hand, the learned AR strongly opposed the contention of the learned counsel and submitted that the goods cleared to spare parts division are intended for retail sale, therefore the appellants are required to affix MRP and to discharge duty liability as per Section 4A of the Act.
4. Heard both sides.
5. We find that the issue involved is of a narrow compass, therefore we waive the requirement of pre-deposit and take up the appeals for final disposal with consent of both sides. After examining the various contentions made by both sides, we find that the appellants are clearing the goods to their customers who further take the process of manufacturing defined as per Section 2(f) of the Central Excise Act, 1944. It is also on record that they are clearing these goods in bulk and loose condition. To prove these facts, evidence could not be produced before the lower authorities by the appellants. Therefore, we find it fit, in the interest of justice, that these facts are to be examined by the lower authorities. If the appellants are able to prove these facts, then they are not liable to pay duty as per Section 4A of the Central Excise Act, 1944. Therefore, we remand the matter back to the adjudicating authority to ascertain the facts examined by us and thereafter to pass appropriate order in accordance with law. The appeals and the stay applications are disposed of in the above terms.
(Dictated in Court) (P.R. Chandrasekharan) Member (Technical) (Ashok Jindal) Member (Judicial) tvu 1 4