2020 (9) TMI 78 - AT - Central Excise

Tribunal: SKF entities not related under Central Excise Act; Notification 06/2006-CE applies to wind generator bearings.

M/s. SKF Technologies India Pvt Ltd, M/s. SKF India Ltd, M/s. Chandramowli Srinivasan Versus C.C.E., Ahmedabad-II

The Tribunal determined that M/s SKF India Ltd. and M/s SKF Technologies India Pvt. Ltd. are not related persons under the Central Excise Act, 1944. ... Valuation - ball or roller bearing - related party transaction - rejection of declared value - value is sought to be determined on the basis of price at which M/s. SKF India Ltd. has sold the product - benefit of N/N. 6/2006-CE. - HELD THAT:- So far as loan granted by M/S SKFIL to M/s SKFTIL is concerned interest at the rate of 9% has been fixed. It has also been specified that the rate of interest would be revised regularly at half yearly basis and shall not be less than the prevailing bank rate under section 49 of RBI Act, 1934. In view of above, it is apparent that this a purely business transaction and not a transaction creating interest in the business of each other. It is seen that M/s SKFIL and M/s SKFTIL are sharing some staff cost. It is seen that M/s SKFIL has factories located in Bangalore, Haridwar, Pune, Manesar and Jamshedpur, also for 5 branches located all over the country. There are also two associate companies namely M/s SKF Technologies Ltd. and M/s Lincoln Helios India Ltd. Among these organisations, M/s SKFIL has identified the departments where they share the cost incurred on staff. It is found that these are purely business transaction and cost sharing cannot be treated as transaction creating interest in business of each other. Had it been the case that M/s SKFIL were providing such services free of cost or at subsidised rates to the other, then one could have asserted that there was an interest in business of each other. In this case, the costs of staff are charged to each other. Therefore, it can only be treated as business transaction. The mere fact that the entire production of M/S SKFTIL is sold through M/s SKFIL is not sufficient to make them related parties. There has to be positive evidence of them having interest in the business of each other - Since the two cannot be treated as related parties, the transaction value between SKFIL and SKFTIL has to be accepted for the purpose of assessment. The appeal on this count is allowed. Admissibility of notifications of 06/2006 to the bearings manufactured by the M/s SKFTL and ultimately sold for use in the wind operated electricity generators as parts - HELD THAT:- The term wind operated electricity generator appeared in notification 06/2006-CE dated 01.03.2006 includes the entire setup i.e. the tower, the generator, the blades which are used to generate electricity from wind. The term “wind operated electricity generator” in the notification does not refer to solely to the generator which is just one of the parts of the wind operated electricity generator. Appeal allowed - decided in favor of appellant. Issues Involved:1. Whether M/s SKF India Ltd. and M/s SKF Technologies India Pvt. Ltd. are related persons under the Central Excise Act, 1944.2. Whether the benefit of Notification No. 06/2006-CE can be extended to the bearings manufactured by M/s SKF Technologies India Pvt. Ltd. for use in wind-operated electricity generators.Issue-Wise Detailed Analysis:1. Related Persons under Central Excise Act, 1944:The Revenue asserted that M/s SKF India Ltd. (SKFIL) and M/s SKF Technologies India Pvt. Ltd. (SKFTIL) are related due to their control by M/s AB SKF, Sweden, and mutual transactions such as loans and cost-sharing agreements. The Revenue argued that these entities are interconnected under clause (iv) of Section 4(3)(b) of the Central Excise Act, 1944. However, the Tribunal found that the loan agreement between SKFIL and SKFTIL, which included an interest rate of 9%, was a business transaction without creating mutual business interest. Similarly, cost-sharing arrangements were also seen as business transactions since costs were charged and not provided free of cost or at subsidized rates. The Tribunal concluded that merely selling the entire production through SKFIL does not establish a related party relationship without positive evidence of mutual business interest. Therefore, the transaction value between SKFIL and SKFTIL was accepted for assessment, and the appeal on this count was allowed.2. Benefit of Notification No. 06/2006-CE:The Revenue contended that the exemption under Notification No. 06/2006-CE should only apply to parts of the generator used in windmills, not to other parts of the windmill. They argued that the description in the earlier notification (No. 05/99) was broader and that the current notification was more restrictive. However, the Tribunal referred to Circular No. 1008/15/2015-CX, which clarified that components such as towers, nacelles, and rotors used in wind-operated electricity generators are exempt from excise duty. The Tribunal also cited the Larger Bench decision in Rakhoh Enterprises, which supported the view that various parts designed for windmills are exempt. The Tribunal found that the term 'wind-operated electricity generator' in Notification No. 06/2006-CE includes the entire setup, not just the generator. Consequently, the Tribunal set aside the Revenue's demand and allowed the appeal on this count as well.Conclusion:The Tribunal ruled that M/s SKF India Ltd. and M/s SKF Technologies India Pvt. Ltd. are not related persons under the Central Excise Act, 1944, and that the benefit of Notification No. 06/2006-CE extends to bearings manufactured for use in wind-operated electricity generators. The appeals were consequently allowed.