Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, ... vs M/S. Amson Audio Pvt. Ltd on 10 January, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. E/1830/2004-Mum. (Arising out of Order-in-Appeal No. SDK(293-294)34-35/MV/2004 dated 27.02.2004 passed by the Commissioner (Appeals) Central Excise, Mumbai-I ) For approval and signature: Honble Mr. S.S.Kang , Vice President Honble Mr. Sahab Singh, 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?
============================================================= Commissioner of Central Excise, Mumbai-V :
Appellant VS M/s. Amson Audio Pvt. Ltd. :
Respondent Appearance Ms. D.M. Durando Dy. Commissioner (A.R.) for Appellant None for respondent.
CORAM:
Mr. S.S. Kang, Vice President
Mr. Sahab Singh, Member (Technical)
Date of hearing : 10/01/2012
Date of decision : 10/01/2012
ORDER NO.
Per : S.S.Kang
Heard learned Dy. Commissioner (A.R.). As none appeared on behalf of the respondent in spite of notice.
2. The Revenue filed this appeal against the impugned order whereby Commissioner (Appeals) disposed of the appeals filed by the respondent and set aside the adjudication orders on the ground that recording of video sound blank cassette does not amount to manufacture and question of valuation, therefore will not arise. In the present case show cause notices were issued to the respondents on the ground that the respondents were undervaluing their Pre-recorded Audio Cassettes as they were not taking into account the cost of DTA, Royalty paid by music companies to the artists for obtaining title rights.
3. The contention of Revenue is that the demand is for the period May 1997 to September 1997 vide final bill 1997. The Chapter Note 7 of Chapter 85 was introduced to the fact that recording of same will not amount to manufacture. Therefore, the findings that recording of sound does not amount to manufacture are not sustainable. Revenue also relied upon the decision of Honble Supreme Court in the case of Gramophone Co. of India Ltd. Vs. Collector of Customs, Calcutta reported in 1999 (114) E.L.T. 770 (S.C.).
4. We find that the demand is for the period May 1997 to September 1997 and the Chapter Note 7 of Chapter 85 of the Central Excise Tariff was introduced vide final bill 1997, as per Chapter Note recording of sound will amount to manufacture. Further, we find that Honble Supreme Court in the case of Gramophone Co. of India Ltd. (supra) held that recording of audio cassettes on duplicating music system amounts to manufacture as blank audio cassette is distinct and different from pre-recorded audio cassette and two have different use and name. In these circumstances, the finding in the impugned order that recording of sound does not amount to manufacture is not sustainable. The impugned order is set aside and matter is remanded to the Commissioner (Appeals) to decide issue of valuation, after affording an opportunity of hearing to the respondents. The appeal is disposed of by way of remand.
(Dictated in court) (Sahab Singh) Member (Technical) (S.S. Kang) Vice President Sm ??
??
??
??
3