Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, Thane I vs M/S Geeta Engg. Works P. Ltd on 18 January, 2011
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI Appeal No. E/3158/03 (Arising out Order-in-Appeal No. PD/42/TH-I/03 dated 1.8.03 passed by the Commissioner of Central Excise (Appeals), Thane I) For approval and signature: Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. P.R. Chandrasekharan, 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, Thane I Appellant Vs. M/s Geeta Engg. Works P. Ltd. Respondent Appearance:
Shri S.M. Vaidya, JDR for the appellant Shri Ms. Anagha Gavade, Advocate for the respondent CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. P.R. Chandrasekharan, Member (Technical) Date of hearing : 18.01.2011 Date of decision : 18.01.2011 O R D E R No:..
Per: Mr. Ashok Jindal, Member (Judicial) Revenue is in appeal against the impugned order wherein the lower authorities have admitted the defence of the respondents.
2. The brief facts of the case are that respondents are the manufacturers of machinery items. During the course of manufacture, they purchased certain spare parts which were required to be supplied along with machines. These spare parts were bought out by the respondent from the market and no credit of duty was taken by them and the same were cleared along with machinery after making the payment of excise duty. Show-cause notices were issued to propose to classify these spare parts under CHS 8483. Both the lower appellate authority held that as the respondent has not manufactured these spare parts, question of classification does not arise. Aggrieved from the said order, revenue is in appeal.
3. Ld. DR submitted that these products have been cleared by the respondent along with the machinery, hence they are the part of the machinery manufactured by the respondent. Accordingly, spare parts are to be classified as machinery under the respective headings. Hence the impugned order is to be set aside and the matter be sent back to the adjudicating authority to classify the product and to raise a demand of duty, accordingly.
4. Heard and considered.
5. We have heard the ld. DR but we do not find any force in the argument advanced by the ld. DR as it is an admitted fact that these spare parts have been purchased by the respondent from the open market and no manufacturing activity has been taken on these spare parts. These spare parts have been cleared along with the machinery after discharging duty liability also, although the duty was not leviable on these spare parts because the respondent have not availed MODVAT credit on these spare parts. When a product has not been manufactured by an assessee, duty liability does not arise as per Section 3 of the Central Excise Act, 1944. Hence, the issue of classification of the impugned spare parts does not arise at all. From the above discussions, we do not find any infirmity in the impugned order, same is upheld. Appeal filed by the revenue is rejected.
(Dictated in Court) (P.R. Chandrasekharan) (Ashok Jindal) Member (Technical) Member (Judicial) SR 3