TaxTMI 
TaxTMI 
2010 (8) TMI 287
X X X X Extracts X X X X
X X X X Extracts X X X X
.... we heard the cases together and proceed to dispose of the appeals by this common judgment. We have heard Sri. John Varghese, Senior Standing Counsel for the Central Board of Excise and Customs for the appellant and Senior counsel Sri. Arshad Hidayathulla along with Adv. Sri. Joseph Kodianthara for the respondent. 2. The respondent is a leading manufacturer of tyres. Though tyres are manufactured and sold from the factories in Kerala, respondent is buying tubes and flaps from other factories for sale along with tyres. Besides selling tyres, tubes and flaps in the replacement market, respondent is also engaged in sale of tyres, tubes and flaps to Original Equipment Manufacturers (OEMs) namely, Automobile manufacturers for fixing in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d flaps. The factual position and the finding of the department is that the OE Manufacturers issued separate purchase orders for tubes and flaps and respondent in terms of purchase orders, issued separate invoices for tubes and and flaps and the sale is in the form in which those items were purchased and so much so, Rule 3(4) which is later numbered as Rule 3(5) squarely applies requiring the respondent to pay the differential duty i.e. excess CENVAT credit availed on tubes and flaps over the duty paid on resale. Even though the adjudicating authority overruled the respondent's objections and sustained the demands for two periods i.e. from 1-3-2003 to 30-11-2006 and from 1-12-2006 to 31-10-2007 by separate orders, the Customs, Excise and Se....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in the same form in which it is purchased. His contention is that at the maximum respondent is engaged in repacking of tubes and flaps after purchase and the same does not involve any manufacture or processing and so much so, the Rule is squarely attracted. Senior counsel appearing for the respondent on the other hand explained to us that the respondent after manufacture of tyre, puts the tube inside the tyre and the flap is kept above the tube within tyre and the tube is partly inflated and then a few round tapes are put around the tyre with tube and flap inside. According to him, the method of packing is a process adopted by the respondent so that the OE Manufacturer can readily fix the tyre with tube and flap to the rims of the automobil....
X X X X Extracts X X X X
X X X X Extracts X X X X
....es and flaps are admittedly accessories for use of tyre the purchase and resale of tubes and flaps along with the tyre does not make the transaction anything different from trading. The respondent-assessee is engaged in purchase and resale of tubes and flaps along with tyres in the replacement market and rightly they don't claim any CENVAT credit for the duty paid on tubes and flaps. We do not find any difference in the trading engaged by the respondent i.e. in purchase and resale of tubes and flaps, whether it be for replacement market or whether the sale is to the OE Manufacturer. Admittedly the assessee is paying duty on tyres, tubes and flaps sold under separate invoices on the transaction value in terms of Section 4(1)(a) of the Act an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....onverting (I) Ltd. reported in 2007 (218) E.L.T. 494 (Bom.), Modernova Plastyles Pvt. Ltd. v. Commissioner of C. Ex., Raigad reported in 2008 (232) E.L.T. 29 (Tri.-LB) and Balkrishna Industries Ltd. v. Commissioner of C. Ex., Jaipur-I reported in 2007 (217) E.L.T. 228 (Tri.-Del.), we do not find any of these judgments deal with the issue arising here directly. We, therefore, do not find any justification to deviate from the view taken as above. 5. The next question raised pertains to limitation. Here again, the Tribunal's finding is challenged by the Department on the ground that suppression was practised by the respondent. Extended period of limitation is available under Section 11A(1)(a) to the Department only if assessee has con....