TaxTMI 
TaxTMI 
2010 (9) TMI 374
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....egister and the same was, accordingly, put under seizure and a separate show cause notice for the same stand issued, which is not the subject matter of the present appeal. 2.Shri Hemant Chunilal Shah, Authorised Signatory of the appellant in his statement recorded on 14-5-01, stated that the paint booth manufactured by them is not complete without hot air generator and filter blower; that paint booth is used for painting a car and the vehicle is entered into paint booth for the purpose of painting. When the painting is over, the car is kept therein for the purpose of drying. He clarified that the main purpose of paint booth is to provide dust free ambience while painting. 3.A statement of Shri Milan Sevantilal Shah, Director of the unit was also recorded on 13-1-04, wherein he deposed that the orders are received from the parties by their regional sales office, who issue them the dispatch advice. The price mentioned in the dispatch advice is the same as the price mentioned in the order. He further clarified that they raise the Central Excise invoice only for the paint booth manufactured by them and the difference in the invoice and the dispatch advice is on account of price o....
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....d only from their godown or directly to the customer's premises from the manufacturing unit. They pleaded that the change in classification of the product is being changed from 8424.00 to 8419.10 with sole purpose of adding value of generator and filter blower purchased by them by treating the same as integral part of the drying booth cabinet. They also assailed the notice on the ground of limitation. In the alternative, they claimed Modvat Credit paid on the generator and filter and revising the duty by treating the same as cum-duty price. 6. The Commissioner, in his impugned order, did not find favour with the pleas raised by the appellant. However, he reduced the duty to Rs. 28,24,881/- by treating the entire realisation as cum-duty price. Accordingly, duty of the above amount was confirmed by him along with confirmation of interest and imposition of penalty of Rs. 10 lakhs and Rs. 1 lakh on the manufacturing unit as also on the director of the company. The said order of the Commissioner is impugned before us. 7. After hearing both sides duly represented by Shri P.M. Dave, learned advocate for the appellant and Shri R.S. Sangia, learned SDR for the Revenue, we fi....
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....h, Director of the said unit, their clients insist for supply of hot air generator and filter. The use of expression 'insist' and acceptance of the same by the Commissioner is indicative of the nature and character of the generators and filters as part or accessory. If the generator and filter is invariably required to be added to the paint booth, there is no question of the appellant's customers insisting on supply of the same. Taking an example from the common life, a compressor of air-conditioners is admittedly a part of air conditioner and no buyer would insist on supply of the compressor. A compressor would invariably make a part of the air conditioner and has to be supplied necessarily along with air conditioner. It cannot be left to the choice of the buyer. However, in the present case, even presuming that 100% of the customers are insisting on supply of hot air generator and filter, the same till remains an option for the buyer. Where all the buyers are merely exercising that option, the same will not convert the said two products into a part of the paint booth. The purpose of paint booth and drying cabinet is to provide separate space for painting articles, so that the pai....
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....ery has to be added in the value of UPS only where the battery, UPS are cleared together from the manufacturing factory and not where UPS along cleared from the factory and batten' added by distributor for sale to the customers. 12. At this stage, we may refer to the decision relied upon by the learned SDR in the case of CCE, Pune v. Thermax Bobcock & Wilcox Ltd. - 2005 (182) E.L.T. 336 (Tri-Mumbai), wherein it was held that the value of the bought out items received at site and used in erection of boiler are includible in the assessable value of the boiler. However, we find that the above findings stand arrived at by the Tribunal are in the case of factual drop back of that case wherein several parts of the boilers were being removed in un-assembled form, in several lots on different dates and bought out items were found to be necessary to make the boiler functional. The above distinguishing factors will not make the ratio of the law declared in that case as applicable to the facts of the present case. Similarly, the Hon'ble Supreme Court judgment in the case of Narne Tulaman Manufacturers Pvt. Ltd. v. Collr. of C.E. - 1988 (38) E.L.T. 566 (S.C.), relied upon by the learne....