Customs, Excise and Gold Tribunal - Bangalore
Geekay Wires Pvt. Ltd. vs The Commissioner Of Customs And Central ... on 22 February, 2007
Equivalent citations: 2007(118)ECC107, 2007ECR107(TRI.-BANGALORE), 2007(213)ELT224(TRI-BANG)
ORDER T.K. Jayaraman, Member (T)
1. These RoM applications have been filed in respect of the Final Order Nos. 1400 & 1401/2006 dated 30.08.2006 passed by this bench.
2. Shri Anjaneyulu, the learned Chartered Accountant, pointed out that this Bench has upheld the order of the Adjudicating Authority. The Adjudicating Authority has relied on the decision of the Tribunal in the case of General Industries Corporation v. CCE, Kanpur . But the above said decision of the Tribunal has been overruled by the decision of the Apex court as wherein it is held that conversion of Galvanised Stranded Stay Wires out of GI Wires does not amount to manufacture. As per settled case-laws, when a decision rendered by the Apex Court is not considered, non-consideration of such binding precedent would constitute an error apparent on the face of record. This is supported by a decision of the Larger Bench in the case of Hindustan Lever Ltd. v. CCE, Mumbai 2006 (202) ELT 177(Tri.-LB). In view of the above, he requested to allow the appeal.
3. The learned JDR pointed out that the Final Order is legal and proper.
4. We have gone through the records of the case carefully. In the Final Order, the Bench has upheld the OIO, which relied on the decision in the case of General Industrial Corporation (cited supra). The issue is that the Stranding of wires amounts to manufacture. Although the fact that the decision of the Tribunal was overruled by the Hon'ble Apex Court was not brought to our notice, at the time of hearing the appeal, the learned Advocate thus pointed out while filing the RoM petition, that the said decision of the Tribunal cannot be followed in the light of Apex court's decision. Even though the learned Advocate has not given us a copy of the said Apex Court decision, he has drawn our attention to the following report which appeared in the Excise Law Times. The said report is reproduced below:
Manufacture--Conversion of Galvanised Stranded Stay Wire out of GI Wires not amounts to manufacture (2) Manufacture--Goods produced on job work basis--Raw material supplier not a manufacturer (3) Valuation (Central Excise)--Sales tax and surcharge excludible The Supreme Court Bench comprising Hon'ble Mr. Justice S.P. Bharucha and Hon'ble Mr. Justice K.T. Thomas on 25-7-1996 has allowed the Civil Appeal No. 5087 of 1995 filed by M/s. General Industrial Corporation against the CEGAT Order Nos. E/1 & 2 /95-B1, dated 16-11-1994 and (General Industrial Corporation v. Collector). While allowing the appeal, the Hon'ble Supreme Court passed the following order :
When notice was issued on the appeal, it stated that the appeal appeared to be covered by the judgment of this Court in C.A. No. 510 of 1988 - Collector of Central Excise, Indore v. Anand Behari Steel Wires, delivered on 9th January, 1989. The position that it is covered is not disputed. Following the said judgment, the appeal is allowed and the judgment and order under appeal is set aside. The appeal (No. E-1922/85-B1) filed by the appellant before the Customs, Excise and Gold (Control) Appellate Tribunal is allowed.
There shall be no order as to costs.
A report relating to the admission of the appeal in question [C.A. No. 5087 of 1995] by the Supreme Court was published in E.L.T. - 1995 (78) E.L.T. A38.
The Appellate Tribunal in its order in question had held that conversion of Galvanised Stranded Stay Wire (GSS Wire) (classifiable under erstwhile Tariff Item 68) out of GI wires by stranding 7 or 8 single galvanised wire amounts to manufacture under Section 2(f) of the Central Excise Act. The Tribunal further held that General Industrial Corporation (GIG) were the manufacturer and that the value of the goods manufactured by GIG on job work basis out of raw material supplied by Arkay was to be added in the clearances of GIG and not Arkay. Relating to determination of the value of the goods manufactured by Appellant on job work basis, the Tribunal held that the value at which the goods in question were finally sold to the customers should be reckoned for computing the value of their clearances of the said goods, and the benefit of Notification No. 119/75-C.E. was not available to them. The Tribunal further held that not the job charges alone but the total value of the said goods had to be taken into account for computing the value of the said goods cleared.
The Tribunal further held that sales tax and surcharge is excludible from the assessable value of goods manufactured by the job worker (Appellant) and value is to be calculated at rates prevailing at the time of clearance and not that prevailing at the time of seizure.
[General Industrial Corporation v. Collector (S.C)] Since the basic issue of manufacture has been settled in favour of the assesses, in the present case, the decision of the Adjudicating Authority is not sustainable. Hence, no duty is demandable. Therefore, we recall the Final Order. Thus, the RoM application is allowed by allowing the appeal itself.
Pronounced and dictated in open Court on 22.02.07