TaxTMI 
TaxTMI 
2013 (3) TMI 430
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.... Heading No. 8425 to 8430". The period of dispute in this case is from June, 2006 to June, 2011. Section 2(f)(iii) of the Central Excise Act, 1944, states that in respect of the goods listed in Schedule III to the Central Excise Act, 1944, packing or re-packing of goods in a unit container, or labelling or relabelling of containers including declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the same marketable to the consumer, amounts to manufacture. During the period till 28-4-2010, Sl. No. 100 of the third Schedule to the Central Excise Act, 1944 covered - "parts, components and assemblies of automobiles" falling under any chapter heading. There is no definition of the term "Automobile" in that schedule or in the Central Excise Act, 1944. With effect from 29-4-2010, Sl. No. 100 of the Third Schedule was substituted by Sl. No. 100 and 100A and while the Sl. No. 100 covers "parts, components and assemblies of vehicles (including chassis fitted with engine) falling under Chapter 87 excluding the vehicles falling under Heading Nos. 8712, 8713, 8714 and 8716", the Sl. No. 100A covers "parts, components and assemblies of good....
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....uty demand of Rs. 13,40,71,400/- along with interest. Since an amount of Rs. 60 Lakh had been paid during investigation, this amount was ordered to be appropriated towards the duty demand. Besides this, Commissioner also imposed penalty of Rs. 3,25,00,000/- on the appellant-company under Rule 25 of the Central Excise Rules. Since in course of investigation, certain goods in the warehouse had also been placed under seizure, the same were also ordered to be confiscated and total redemption fine of Rs. 21,80,00,000/- was imposed. 1.3 Against this order of the Commissioner, these two appeals have been filed along with stay applications. 2. Heard both sides in respect of stay applications. 3. Shri Madhav Rao, Advocate, the learned Counsel for the appellant, pleaded that there is no dispute about the fact that WTLB and VC are construction machinery classifiable under Heading 84.29 and 84.30 respectively and their parts are classifiable under Heading 84.31, that in terms of the Board's Circular dated 16-12-2008 for the purpose of Entry No. 97 in Notification No. 2/2006-C.E. (N.T.) issued under Section 4A of Central Excise Act, 1944, which is identical to the Entry No. 100 of the Third ....
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....ariff Item No. 84264100, 8427, 8429 and 843010", that this amendment, in absence of any specific provision regarding its retrospective applicability, is inapplicable for the period prior to 29-4-2010, that from this amendment also, it is clear that during the period prior to 29-4-2010, the term "parts, components and assemblies of Automobiles" would not cover the parts, components and assemblies of earth moving/construction machineries falling under Heading No. 84.31, that the Commissioner has not given any finding as to how the Board's Circular mentioned above would not be applicable, that even if the Department's plea that the re-packing of the goods for retail sale amounts to manufacture and would attract central excise duty, is accepted, the appellant would be eligible for Cenvat credit of the duty paid on the components, as the components packed for sale as spares were duty paid, that the Commissioner has not given any finding as why Cenvat credit would not be available, that in any case, the appellant's duty liability in respect of clearance of parts of WTLB and VC during period prior to 29-4-2010, after permitting the Cenvat credit would be very small, against which the appe....
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....-2010, the parts of WTLB and VC are specifically covered by Entry No. 100A and hence their packing for retail sale would amount to manufacture and that in view of this, there is no infirmity in the impugned order and hence this is not the case for waiver from the requirement of pre-deposit. 5. We have considered the submissions from both the sides and perused the records. The undisputed facts are that the WTLB and VC are classifiable under Headings 8429 and 8430 respectively and parts and components of these machinery would be covered under Heading No. 8431. However, during the period till 28-4-2010, Sl. No. 100 of the 3rd Schedule to the Central Excise Act, 1944 covered "parts, components and assemblies of Automobiles". In terms of the provisions of Sec. 2(f)(iii) of the Central Excise Act, 1944, in respect of the items appearing in 3rd Schedule, the packing or re-packing in unit container or labelling or relabelling of containers including declaration of alteration retail sale price or subjecting the goods to any process to render the same marketable to the consumer, would amount to manufacture. The point of dispute is as to whether during the period prior to 29-4-2010 the parts....
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....er statute or statutory instrument and more so when such statute or statutory instrument is not dealing with the cognate subject. Meaning of the term "Automobile" in Entry No. 100 of the Third Schedule to the Central Excise Tariff Act, 1944 should therefore, be understood on the basis of how the term "Automobile" is understood in the cognate statute of Central Excise Tariff Act, 1985 and its schedule. The definition of "Automobile" in Motor Vehicle Act, 1988 or Air (Prevention and Control of Pollution) Act, 1981, which deal with altogether different subjects, cannot be adopted for construing this term in Central Excise Act, 1944. When in the schedule to the Central Excise Tariff Act, WTLB and VC are understood as construction machinery falling under Chapter 84 and not as "Automobile" of Chapter 87, it would be totally wrong to apply definition of the term "Automobile" in Motor Vehicle Act, 1988 and Air (Prevention and Control of Pollution) Act, 1981 which are for altogether different purposes, and hold that this term covers WTLB and VC also. (3) In the case of M/s. Central Coalfields Ltd. & Others v. State of Union and Others (supra) the issue involved was as to whether M/s. Centr....