Custom, Excise & Service Tax Tribunal
M/S Phils Engg. Co vs Commissioner Of Central Excise, ... on 24 October, 2016
IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. IV APPEAL NO. E/2094/00-Mum (Arising out of Order-in-Appeal No. RJB/110/M-II/2000 dated 31.03.2000 passed by the Commissioner of Central Excise (Appeals), Mumbai-II.) For approval and signature: Honble Mr. Ramesh Nair, Member (Judicial) Honble Mr. C.J. Mathew, 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 : No CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy : Seen
of the order?
4. Whether order is to be circulated to the Departmental : Yes
authorities?
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M/s Phils Engg. Co.
Appellant
Vs.
Commissioner of Central Excise, Mumbai-II
Respondent
Appearance:
Shri S.P. Sheth, Advocate
for Appellant
Shri Ashutosh Nath, Assistant Commissioner (A.R.)
for Respondent
CORAM:
HONBLE SHRI RAMESH NAIR, MEMBER (JUDICIAL)
HONBLE SHRI C.J. MATHEW, MEMBER (TECHNICAL)
Date of Hearing: 24.10.2016
Date of Decision: 02.12.2016
ORDER NO.
Per: Ramesh Nair:
The fact of the present case is that appellant is manufacturing LPG Bullets and clearing at customers site, the erection and installation of said LPG Bullets is also carried out by the appellant at customers site, for which the additional amount is recovered. The case of Revenue is that fabrication was partly done in the appellants factory and partly at customers site. The adjudicating authority dropped the demand on the ground of time bar; however on merit of the case, the view was expressed that the amount on account of spot fabrication for all LPG Bullets should from part of assessable value. Aggrieved by the portion of the adjudicating authority on merits, the appellant filed an appeal before the Commissioner (Appeals). The learned Commissioner (Appeals) rejected the appeal and upheld the Order-in-Original therefore the appellant is before us.
2. Shri S.P. Sheth, Learned Counsel appearing for the appellant has strongly argued that the LPG Bullets is completely manufactured in the factory of the appellant and cleared to the site of the buyer and at site only erection and installation is carried out by way of civil work and welding. Since the LPG Bullets was completely manufactured, other activity at site is other than the manufacturing activity. Even the erection and fabrication activity is of immovable structure, therefore the same is not liable for duty. On query from the Bench that whether the issue of recurring nature. The learned Counsel could not show any material that the issue is of recurring nature. He placed reliance on the following judgments:-
(i) CCE, Mumbai Vs. Official Liquidator for Brimco Plastic machinery P. Ltd. 2015 (324) ELT 637 (S.C.)
(ii) Quality Steel Tubes (P) Ltd. Vs. Collector of Central Excise, U.P. -1995 (75) ELT 17 (S.C.)
(iii) Mittal Engineering Works (P) Ltd. Vs. Collector of Central Excise, Meerut - 1996 (88) ELT 622 (S.C.)
(iv) M/s Phils Engg. Co. Vs. CCE, Mumbai - Tribunal Order No. A/89470/16/EB dated 10.08.2016 On the basis of above settled cases the post clearance charges on account of installation, erection and commissioning at the buyers place not liable to be included in the assessable value.
3. On the other hand Shri Ashutosh Nath, Assistant Commissioner (Authorised Representative) appearing on behalf of the Revenue reiterates the findings of the impugned order.
4. We have carefully considered the submissions made by both the sides. We find that the entire demand has been dropped by the adjudicating authority and upheld by the Commissioner (Appeals) on the ground of limitation even though some observation was given by the adjudicating authority and Commissioner (Appeals) on the merits of the case but the demand does not survive and same stand dropped.
Since the issue is not of recurring nature there is no consequential adverse effect of the observation given by the lower authorities on appellant. We are therefore the view that observation on merits which was challenged by the appellant will not prejudice the appellant. We therefore do not need to address the merits of the case. As per above discussion without expressing any views on merits of the case, the impugned order is sustained and the appeal is dismissed.
(Pronounced in Court on 02.12.2016) (C.J. Mathew) (Ramesh Nair) Member (Technical) Member (Judicial) Sp 2 APPEAL NO. E/2094/00-Mum