Custom, Excise & Service Tax Tribunal
The Commissioner Of Central Excise vs Lipi Boilers Industries Ltd on 23 September, 2010
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No.I APPEAL No.E/1377/07 E/CO/13/08 (Arising out of Order-in-Appeal No.RKR(136)02/07 dated 13/07/2007 passed by Commissioner of Central Excise & Customs (Appeals), Aurangabad) For approval and signature: Honble Mr.S.S. Kang, Vice President Honble Mr.S.K. Gaule, 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 : No of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
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The Commissioner of Central Excise,
Aurangabad Appellants
Vs.
Lipi Boilers Industries Ltd., Respondents
Appearance:
Shri.N.S. Sayyad, JDR for the Appellants
Shri.M.P. Kulkarni, Consultant for the Respondents
CORAM:
Mr.S.S. Kang, Vice President
Mr.S.K. Gaule, Member (Technical)
Date of hearing : 23/09/2010
Date of decision : 23/09/2010
O R D E R No:..
Per: Mr. S.S. Kang, Vice President
1. Heard both sides.
2. Revenue filed this appeal against the impugned order. The only issued involved in this case is that whether the value of bought out item is to be added to the value of the boiler manufactured by the respondent. The contention of the revenue is that the respondent manufactured and supplied the boiler. The boiler was cleared in CKD condition on payment of duty. Certain items were purchased from the market and supplied directly at the place of installation. The case of the revenue is that the value of bought out items is to be added to the assessable value of the boiler. The revenue relied upon the decision of the Tribunal in the case of CCE, Pune Vs. Thermax Bobcock & Wilcox Ltd., reported in 2005 (182) ELT 336 (Tri-Mumbai). The respondent relied upon the decision of the Tribunal in the case of Silson India Pvt Ltd., Vs., CCE, Thane, reported in 2006 (194) ELT 37 (Tri-Mumbai). The Ld. Counsel submits that the value of bought out item is not to be added to the assessable value of the boiler. The respondent also submits that after installation, the boiler is permanently imbedded and is non-excisable.
3. We find no merits in the contention of the respondent that the boiler has been permanently imbedded and is non-excisable as this plea was not taken before the lower authorities. Further the respondents are paying duty at the time of clearance of boiler from the factory, meaning thereby the boiler is manufactured in the factory and only ease of transportation, the same has been cleared in CKD condition. In these circumstances, we find no merits in this contention.
4. From the facts of the present case the respondent received an order for supply of boiler. The respondent manufactured boiler in the factory and cleared in CKD condition but certain parts were purchased from the market, which were directly supplied at site. These parts are essential parts of the boiler, which are not in dispute, therefore, the decision of the Tribunal in the case of Thermax Bobcock & Wilcox Ltd., (supra) held that the value of bought out items received at site and used in the erection of boiler includable in the assessable value of the boiler. The respondent relies upon the decision of the Tribunal in the case of Silson India Pvt Ltd., (supra). We find the facts of the case are different from the facts of present case. In the case of Silson India Pvt Ltd., (supra) there was no evidence on record to show that full boiler has come into existence in the factory of manufactured and the manufacturer cleared only parts of the boiler. In the present case the respondents are clearing the boiler in CKD condition. Therefore, the respondents are manufacturing boiler and clearing the same as boiler as bought out items are essential parts, therefore, they are includable in the assessable value of the boiler. The impugned order is set aside and the appeal filed by the revenue is allowed. Cross objection filed by the respondent is also disposed of accordingly.
(Dictated in Court) (S. K. Gaule) Member (Technical) (S .S. Kang) Vice President pj 1 3 2