Customs, Excise and Gold Tribunal - Delhi
Cce, Bhopal vs M/S. Gei Engineering Ltd. on 28 February, 2001
ORDER
Lajja Ram
1. In this appeal filed by the Revenue, the matter relates to the benefit of Notification No.51/93 CE dated 28.2.93 in respect of the equipment called 'Brake Dust Extraction Unit'. Against Sl.No.20 of the Table annexed to the said Notification, the benefit in respect of the goods falling under Heading No.85.43 of the Tariff was available only when the machines were used for manufacture of the goods. Both the Asstt. Commissioner of Central Excise, who approved the classification list and the Commissioner of Central Excise (Appeals) with whom the appeal was filed by the Department, had taken a view that the Brake Dust Extraction Equipment was eligible for the benefit of concessional rate of duty as provided against Sl.No.20 of the Table annexed to Notification No.51/93 CE aforesaid.
2. Shri Ashok Kumar, JDR at the very outset submitted that the Department had filed appeal with the Commissioner of Cental Excise (Appeals) against the approval of the three classification lists by the Asstt. Commissioner of Central Excise and that it has been wrongly mentioned in the order that the appeal has been filed against the order-in-original No.III(20)ARC/CEX/BPL-I/21/95/795 dated 4.4.1995. In fact, this was the order-in-review passed by the Collector of Central Excise, Indore. A wrong mention has been made of the impugned order, he submits and adds that the ld. appellate authority has gone wrong in the conclusions also. He further, submits that the Brake Dust Extraction Equipment did not participate in the and its job was only to collect the dust when the generator rotor had to be stopped after its use. In fact when the generator rotor was stopped, the manufacturing process could not be said to have taken place. He further submits that the appellate authority had not discussed the product literature. He also relies upon the Supreme Court's decision in the case of Collector of Customs, Bombay Vs. Perfect Machine Tools Co. Pvt. Ltd. - 1997 (96) ELT 214 (SC), wherein the Apex Court had held that unless the exemption notification expressly includes the accessory, such accessory could not be eligible for exemption. He refers to paras 6 and 7 of the aforesaid decision.
3. The respondents have prayed for decision on merits.
4. In the written submissions, it has been submitted that the Brake Dust Extraction Unit was a part of Hydro Generator, which was used in the production of the goods.
5. After going through the impugned order-in-appeal and the product literature, we consider that the matter has not been properly examined by the ld. Commissioner of Central Excise (Appeals). He has also in-correctly taken as if the appeal has been filed against the order dated 4.4.95, which in fact, was a review order. We consider that the product literature has to be gone into in detail and the ratio of the Supreme Court's decision relied upon by the ld. JDR has also to be taken note of.
6. With these observations, we consider it to be a fit case for remand. We remand the case to the jurisdictional Commissioner of Central Excise (Appeals), who will re-examine the matter and after affording an opportunity to both the sides, will pass a speaking appealable order as per law.
7. The Revenue is free to raise the points, which they have made in their appeal before the Tribunal.
8. With these observations, the order is set aside and the appeal filed by the Revenue is allowed by way of remand. Ordered accordingly.
Order dictated & pronounced in the Open Court on 28.2.2000.