2022 (9) TMI 674 - AT - Central Excise

Tribunal reclassifies imported bearings, grants credit for CVD, overturns penalty

Schaeffler India Limited, Sharad Sharma Versus C.C.E. & S.T. -Vadodara-I

The Tribunal dismissed the impugned order, allowing the appeals and classifying the imported bearings under heading 8482, not as parts or components of ... Classification of goods - Roller Bearing and Ball Bearing - parts or components of other engine or vehicles - Process amounting to manufacture or not - Packing or repacking of such goods in a unit container or labeling or re-labelling of containers including the declaration or alteration of retail sale price - goods listed in the Third Schedule of the Central Excise Act,1944 - HELD THAT:- If the Ball bearing and roller imported by the appellant falls in the description of Sl. No. 100A, then the process of “ Packing or repacking of such goods in a unit container or labeling or re-labelling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer” amounts to manufacture and the goods will needs to be assessed under Section 4 A in terms of Notification No 49/2008(NT) as amended - It is noted that the entry 100 of the Third Schedule corresponds to 108 and Notification No 49/2008-CE (NT). Entry 100A of the Third Schedule corresponds to the entry 109 and Notification No 49/2008-CE (NT). The Revenue has alleged that all the Rollers and Ball bearings imported by the Appellant are either parts or components of vehicles falling under Chapter 87 (excluding vehicles falling under Heading 8712,8713, 8715 and 8716) or parts, components of goods falling under tariff item 84264100, Headings 8427, 8429 and sub-heading 843010 - the bearings falling under Chapter heading 8482 cannot be called “Parts” and “Parts and Accessories” even if they constitute integral part of engine or motors of machines or apparatus of heading 8401 to 8479. Articles of heading 8481 or 8482 are excluded from the definition of “Parts” and “Parts and Accessories” under Section Note 2 (e) of Section XVII. As far as heading 8483 are concerned the same could be classified as “Parts” and “Parts and Accessories” provided they constitute the integral part of engine and motors. In view of above it cannot be held that the goods ordinarily falling under heading 8482 can fall under any classification under Section XVII of the Central Excise Tariff Act, 1985. It is apparent that the goods roller and ball bearings would be classified under heading 8482 as ball and roller bearings and the same cannot be classified as parts or components of other machines or vehicles. The revenue had inquired from some dealers and buyers about the usage of the said bearings purchased by them in an attempt to established that the said bearings are used for vehicles. It is seen that no conclusive evidence has been produced by the Revenue to establish that the said bearings are exclusively or primarily used for the automobile use. Even if revenue is to establish that certain bearings are used exclusively or primarily for the automobiles even then in terms of Section Note 2 and 3 to section XVII, the bearings would remain classifiable under chapter heading 8482 as Ball and Roller Bearing. Appeal allowed. Issues Involved:1. Classification of imported bearings.2. Applicability of Section 2(f)(iii) of the Central Excise Act, 1944.3. Interpretation of entries in the Third Schedule of the Central Excise Act, 1944.4. Determination of whether the bearings fall under Sr. Nos. 100 and 100A of the Third Schedule.5. Applicability of Section 4A of the Central Excise Act, 1944.6. Invocation of extended period of limitation.7. Eligibility for credit of CVD paid on the bearings.8. Imposition of penalty on Mr. Sharad Sharma.Detailed Analysis:1. Classification of Imported Bearings:The core issue was whether the imported bearings should be classified under heading 8482 as 'Ball Bearings or Roller Bearings' or as parts/components of vehicles or machinery under Chapter 87 or 84. The Tribunal noted that Note 2(e) of Section XVII of the Central Excise Tariff Act explicitly excludes bearings of heading 8482 from being classified as 'parts' or 'parts and accessories' of vehicles. This classification was supported by the decision in A.K.S Bearing Limited and J.K Tyre and Industries Limited, which clarified that bearings are not considered parts of automobiles even if they are used in them.2. Applicability of Section 2(f)(iii) of the Central Excise Act, 1944:Section 2(f)(iii) defines 'manufacture' to include processes such as packing, repacking, labeling, or re-labeling of containers, or alteration of retail sale price, which render the product marketable. The Tribunal had to determine if the repacking and labeling of bearings by the appellant constituted 'manufacture' under this section. Since the bearings were classified under heading 8482 and not as parts of vehicles or machinery, the processes did not amount to manufacture under Section 2(f)(iii).3. Interpretation of Entries in the Third Schedule of the Central Excise Act, 1944:The Tribunal examined Sr. Nos. 100 and 100A of the Third Schedule, which cover parts, components, and assemblies of vehicles and machinery. The Tribunal found that bearings classified under heading 8482 are excluded from being considered as parts or components under these entries due to the specific exclusion in Note 2(e) of Section XVII.4. Determination of Whether Bearings Fall Under Sr. Nos. 100 and 100A of the Third Schedule:The Tribunal concluded that the bearings did not fall under Sr. Nos. 100 and 100A of the Third Schedule because they are classified under heading 8482, which is excluded from the definition of parts and components of vehicles and machinery.5. Applicability of Section 4A of the Central Excise Act, 1944:Section 4A deals with the determination of value based on the retail sale price for goods notified under this section. The Tribunal noted that bearings were not notified under Section 4A and, therefore, could not be assessed on the basis of the retail sale price. This was supported by the decision in A.K.S Bearing Limited, which held that bearings are not included under relevant notifications for MRP-based assessment.6. Invocation of Extended Period of Limitation:The Tribunal found that the invocation of the extended period of limitation under Section 11A(4) was not tenable. The appellant's understanding that the imported bearings were not covered by Sr. Nos. 100 and 100A of the Third Schedule and, therefore, not subject to duty under Section 4A was reasonable. The evidence gathered by DGCEI also indicated that the bearings were primarily for industrial use.7. Eligibility for Credit of CVD Paid on the Bearings:The Tribunal acknowledged that if the activity is held to be manufacture and subject to duty, the credit of duty paid on inputs is permissible. Therefore, the appellant would be entitled to credit of CVD paid on the bearings at the time of import.8. Imposition of Penalty on Mr. Sharad Sharma:The Tribunal set aside the penalty imposed on Mr. Sharad Sharma, General Manager (Taxation), as he joined the appellant after the activity of importing and trading bearings without payment of duty had already been in existence. It could not be said that Mr. Sharma knowingly indulged in the evasion of duty.Conclusion:The Tribunal dismissed the impugned order, finding no merit in the Revenue's case. The appeals were allowed, and the imported bearings were classified under heading 8482, not as parts or components of vehicles or machinery. The processes of repacking and labeling did not constitute manufacture under Section 2(f)(iii), and the bearings were not subject to assessment under Section 4A. The extended period of limitation was not applicable, and the appellant was entitled to credit of CVD paid. The penalty on Mr. Sharad Sharma was also set aside.