TaxTMI 
TaxTMI 
TaxTMI 
2013 (4) TMI 27
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.... Act, 1985 and were required to pay Excise duty @ 16% since their product is not a 'Power driven pump' but a part of Centrifugal Pump as no motor or engine was attached to it. A demand proposing recovery of differential Excise duty of Rs. 44,33,459/- (for the period March 2003 to March 2004 and April 2006 to November 2006) and Rs. 19,84,775/- (for the period December 2006 to October 2007) respectively totalling to Rs. 64,18,234/- was issued under proviso to Section 11A(1) of Central Excise Act, 1944, interest under Section 11AB and imposition of penalty under Section 11AC ibid read with Rule 25 of Central Excise Rules, 2002 and also proposed imposition of penalty on Shri Kiran P. Mangalwedhekar, Director of the appellant company. Both the Show Cause Notices were adjudicated by the Additional Commissioner vide the impugned order confirming the demand of Rs. 64,18,234/- along with interest, imposing penalty equal to duty on the appellant company and also imposing penalty of Rs. 10 lakhs on the Director of the appellant company. 3. Aggrieved by such an order confirming the demand, the appellant preferred an appeal before first appellate authority. The first appellate autho....
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....tion No. 10/2006-C.E., dated 1-3-2006 should not be denied to them. 5. Ld. SDR, on the other hand, would read the very same Sr. No. 17 of General Exemption Notification No. 10/2006-C.E., dated 1-3-2006 and submit that the intention of the Government was to exempt the power driven pump, primarily designed for handling water viz. Centrifugal Pumps etc. It is his submission that once the description in the notification talks about the power driven pump, it has to be along with electric motor as otherwise the pumps manufactured by the appellant would not be a power driven pump but only a Centrifugal Pump. It is his submission that the wordings in the notification should be construed strictly as it is an exception carved out from the normal law. It is his submission that for the purpose that the exemption notification should be construed strictly, he would rely upon the judgment of Hon'ble Apex Court in the case of Hari Chand Shri Gopal - 2010 (260) E.L.T. 3 (S.C.). He would also rely upon the judgment of the Tribunal in the case of Dura-Metallic (India) Ltd. - 1997 (89) E.L.T. 778 (Tribunal) and in the case of Honda Siel Power Products Ltd. - 2007 (208) E.L.T. 292 (Tri.-Del). It ....
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....Table (hereinafter referred to as the said goods), from so much of the duty of excise leviable thereon under the First Schedule to the Central Excise Tariff Act, as is in excess of the amount calculated at the rate specified in the corresponding entry in column (4) of the said Table. Explanation I. - For the removal of doubts, it is clarified that a manufacturer who has availed of full exemption under Notification No. 8/2003-Central Excise, dated the 1st March, 2003, published in the Gazette of India vide number G.S.R. 129(E), as the case may be, in any financial year, is permitted to avail this exemption in the same financial year. Explanation II. - For the purposes of this notification the "retail sale price"-means the maximum price at which the excisable goods in packaged form may be sold to the ultimate consumer and includes all taxes, local or otherwise, freight, transport charges, commission payable to dealers and all charges towards advertisement, delivery, packing, forwarding and the like, as the case may be, and the price is the sole consideration for such sale. Explanation III. - For the purposes of this notification, the rates specified in column (4) of the said Table....
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....or medical, surgical, dental and veterinary use (other than parts and accessories thereof) 8% 31. 9405 50 31 Kerosene pressure lantern Nil 32. 9501 All goods (other than parts and accessories thereof) Nil 33. 9502 All goods (other than parts and accessories thereof) Nil 34. 9503 All goods (other than parts and accessories thereof) Nil 35. 9603 21 00 Toothbrushes 8% 36. Any Chapter Waste and scrap arising during the course of manufacture of the goods specified against S. No. 1 to 35 above (except S. No. 18, 23, 27 and 35) Nil LIST 1 (See S. No. 26 of the Table) (1) C.A.M. stimulator (2) Contact lens lathe (3) Contact lens polishing machine (4) Contact lens thickness measuring gauge (5) Corneal Anesthesiometer (6) Cryo-lathe (7) Dark adaptometer (8) Exophthalmometer (9) Glare testing equipment (10) Ophthalmic cryo equipment (11) Ophthalmic operating lights and fibre optic lights (12) Ophthalmo dynamometer (13) Pantoscope (14) Projection magnifier for contact lens inspection and verification (15) Radiuscope base curve (for measurement of contact lenses) (16) Refractometer (17) Roper Hall foreign body locato....
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....in notification specifically talks about the Centrifugal Pumps (horizontal or vertical). The said Centrifugal Pumps, as manufactured by the appellant, can be used for some other purpose, is not brought on record by the Revenue, while it is the claim of the appellant that such Centrifugal Pumps manufactured by them can be used only and designed for the purpose of for handling water. It is to be noted that the characteristics of the Centrifugal Pumps always remains the same whether the motor/engine is attached to it or not. The contention of the ld. Counsel that the engine/motor is not a part of the pump, has a strong force as the entry in the exemption notification, though talks about the power driven, does not specify what would power driven pump mean. Be that as it may, the said entry in exemption notification specifically talks about the Centrifugal Pumps which are the goods manufactured and cleared by the appellant. 11. It is seen that C.B.E. & C. vide Circular No. 224/58/96-CX., dated 26-6-1996 had given the following clarification with regard to the classification and excisability of the power driven pumps sets for handling water, is reproduced in toto. "Circular No. 22....
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.... with or without motor gets classified under Chapter Heading 84.13 and if it is undisputed that such pumps are primarily for the purpose of handling water, then the denial of exemption notification to the appellant would be incorrect. 14. As regards the interpretation of the exemption notification, is a similar issue in respect of whether concrete mix manufactured at the site of construction for use in the construction work at site would include ready mix concrete or not, was in dispute which was referred to Larger Bench. The Tribunal in the Larger Bench in the case of Chief Engineer Ranjit Sagar Dam - 2006 (198) E.L.T. 503 (Tri.-LB) (wherein I was one of the Member), has specifically held that when the exemption notification exempts concrete mix which includes ready mix concrete, the exemption notification should not be denied. In order to appreciate the correct position, the entire judgment is reproduced. "This matter is referred to Larger Bench by a division Bench in its referral Order No. 207/05-EX., dated 26-7-2005. At Para No. 2 the referral Bench noted as follows :- "It is the contention of the revenue that the issue remains covered against the assessee by the decisi....
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....Standards IS 4926 : 2003 and IS 456 : 2000 as issued by Bureau of Indian Standards. It was submitted that the Standards for Concrete Mix are covered under the IS 456 : 2000, which lays down the procedure for "Plain and reinforced concrete - code of practice" in detail, while IS 4926 : 2003 lays down the standard of "Ready Mixed Concrete - Code of practice," wherefrom it would be noticed that the selection and quality of ingredients like cement, gravel chemical, etc. are laid down in detail in IS 456 : 2000 and IS 4926 : 2000 relies upon the earlier Standards IS 456 : 2000 for quality of ingredients. It was urged that there is no difference between "plain & reinforced concrete" and "Ready Mixed Concrete". It was also contended that the benefit of the exemption Notification No. 4/97 is available to the appellants as the concrete mix is manufactured by the appellants "at the site of construction" of a Dam Intervening. 4. We have considered the submissions made by both sides and perused records. 5. In the case of Continental Foundation Joint Venture case (supra) the Tribunal after noting the process of manufacture of Ready Mix Concrete and Concrete Mix at Para No. 14 came t....
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.... or included 1997-98 38.24 Prepared binders for foundry moulds or Cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included; Residual products of the chemical or allied industries, not elsewhere specified or included 3824.10 - Phosphogypsum 13% 3824.20 - Ready mix concrete 13% 3824.90 - Others 18%" 9. It can be seen from the above that the "concrete mix", and "Ready mix concrete" get covered under Chapter No. 38, and it is not in dispute. 10. General exemption Notification No. 4/97-C.E. was issued by the Central Government by the powers conferred by sub-section (1) of Section 5A of the Central Excise Act, 1944. The said Section 5A authorizes the Government to issue exemption from payment of duty by issuing a notification. The exemption Notification No. 4/97-C.E. reads as under : "In exercise of the powers conferred by sub-section (1) of Section 5A of the Central Excise Act, 1944 (1 of 1944), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts excisable goods specified ....
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....in its ambit of exemption. 11. In the case of Larsen & Toubro Ltd., before the Hon'ble High Court of Judicature at Madras the Additional Central Government Standing Counsel conceded the issue. It is recorded by the Hon'ble High Court at Para 6 which reads as under :- "At the hearing the learned Additional Central Government Standing Counsel specifically took a stand that Ready Mix Concrete is not leviable even if it is manufactured at the site of construction, but it is leviable only if such Ready Mix Concrete, which is manufactured in a place other than the place of construction for the one's own purpose or for its use somewhere else or by sale and by transportation of the same from Ready Mix Plant to such site of third parties or consumers as the case may be." After recording the views of the Central Government Counsel, the Hon'ble High Court has disposed off the writ petition as under :- "7. Though there is some inconsistency in Para-4 of the Notification issued by the Board, since the learned Standing Counsel for the respondents had clarified that Ready Mix Concrete is exempted only if it is manufactured at site by the promoter or builder for use as the case may b....