TaxTMI 
TaxTMI 
TaxTMI 
2015 (12) TMI 224
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....tion, benefit was extended to appellant to which implied dropping of almost entire liability except on seized goods. Against the said order of the Tribunal, both, the appellants as also Revenue filed appeals before the hon'ble High Court of Bombay at Nagpur Bench and the hon'ble High Court vide order dated February 13, 2015 in Central Excise Appeal No. 32 of 2014 filed by the Commissioner of Central Excise, Nagpur II and Central Excise Appeal No. 3 of 2015 filed by M/s. Larsen & Toubro Ltd. passed the following order: Both these cross-appeals are filed by the Revenue as well as the Assessee being aggrieved by the order of the CESTAT dated 23.07.2014 The appeal before the CESTAT was filed by assessee challenging the order passed by the Commissioner of Central Excise, Nagpur thereby confirming the order passed by the Assessing Authority and demanding dues to the tune of Rs. 1,61,61,27,251/- Rs. 6,37,544/- along with interest. The learned CESTAT cursorily observed in para 3.2 that the extended period of limitation is not invokable and, therefore, the goods are not liable for confiscation. The learned CESTAT also observed that the penalties in the present case are not warran....
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.... trucks and dumpers are classifiable under Chapter 87 while the remaining four are under Chapter 84. The second difference that we find in the case of JCB, all the parts were proposed to be valued under Section 4A of the Central Excise Act. In the present case, Revenue has taken the view that activities undertaken by the appellant are covered under Section 2(f)(iii) read with Third Schedule to the Central Excise Act, and hence amounts to manufacture. Further, in respect of packed parts, components and assemblies the same are required to be valued under Section 4A while in respect of unpacked parts, components and assemblies value is required to be determined under Section 4. The third important difference in the present case is that while in the case of JCB Ltd. the demands were for the period prior to February/April 2010 and the appellants in that case were paying duty under Section 4A after February/April 2010, in the present case, demand is even for the period February/April 2010 April 2011, the appellants even after the removal of the word automobiles in February/April 2010 and specifying particular headings and Chapters both in the third schedule to the Central Excise Act as a....
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....Ltd. (supra). One of the Members deciding the present case was also part of the Division Bench which had decided the case of JCB India Ltd. Shri K.M. Mondal, Special Consultant had argued for Revenue in the case of JCB India Ltd. However, in the present appeals Shri Hitesh Shah, Commissioner (AR) is representing the Revenue. Shri Hitesh Shah has provided additional material in support of Revenues contention. 7. Since main issue starts with the scope of the term automobile various case laws and Boards circular are the ones which were discussed at great length in the case of JCB India Ltd., we would be reproducing many parts from the Tribunals order in the case of JCB India Ltd. 8. The learned Senior counsel reiterated various submissions made by him during the hearing of JCB India Ltd. (supra). The said submissions are not being repeated for sake of brevity. Learned senior counsel also submitted detailed written submissions on 8th September, 9th September and after the hearing was over. The main contention in brief are: 8.1. The appellants have not subjected all the parts of hydraulic excavators, dozer, wheel loaders, motor graders, dumpers and tippers to packing, re-packing, or ....
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....onstruction equipment vehicle means rubber tyred, (including pneumatic tyred), rubber padded or steel drum wheel mounted, self-propelled, excavator, loader, backhoe, compactor roller, dumper, motor-grader, mobile crane, dozer, fork lift truck, self-loading concrete mixer or any other construction equipment vehicle or combination thereof designed for off-highway operation in mining, industrial undertaking, irrigation and general construction but modified and manufactured with on or off or on and off highway capabilities. The learned AR further submitted that the same definition appears in the IS 14272 (2011): Automotive vehicles Types Terminology published by the Bureau of Indian Standards. The above Standards indicate that all self propelled vehicles, whatever may be their use, are considered as automotive vehicles or automobiles. Vehicles with steel drum wheels i.e. crawlers or track laying or chain mounted vehicles are also considered as automotive vehicles. Hydraulic excavators which are self propelled, whether wheel mounted or crawlers, are considered as automotive vehicles. Vehicles designed for off highway operations with on highway, off highway, on and off highway capabili....
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.... 9.2. The learned AR further submitted that the all the six items undoubtedly indicates that these are self propelled vehicles which works either on rubber or pneumatic wheels or steel drum wheels. Hydraulic excavators are available with rubber/pneumatic tyres or with steel drum wheels. A perusal of the literature of each of the items would indicate that they have automobile aspects as also the machinery aspect. Automobile aspects are like independent power, speed, operating weight specification, etc. 9.3. Learned AR further submitted that all the items are automobiles for the purpose of Section 2 of the Air (Prevention and Control of Pollution) Act, 1981, which defines the term automobile as: 2(e)? automobile means any vehicle powered either by internal combustion engine or by any method of generating power to drive such vehicle by burning fuel; 9.4. It is further submitted by the learned AR that this Tribunal in the case of Sociedade de Formento & Ors. vs. Commissioner of Customs 1987 (29) ELT 620 (T), considered crawler type vehicles and held them to be conveyances. It is his submission that, automobile need not be classified under Chapter 87 alone it can be classified under....
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....been held in the following cases: Commissioner of Sales Tax vs. Agarwal & Co. 1983 (12) ELT 116 (Bom.); Indian Tool Manufacturers vs. Collector of Central Excise, Poona 1984 (18) ELT 527 (Tribunal); Indian Tool Manufacturers vs. ACCE 1994 (74) ELT 12 (SC); Standard Pencils (P) Ltd. vs. Collector of Central Excise, Madras 2002 (145) ELT 278 (SC); Swaraj Mazda Ltd. vs. Commissioner of Central Excise, Chandigarh II 2010 (257) ELT 264 (Tri.-Del.); The Western India Plywoods Ltd. vs. Commissioner of Central Excise 1985 (19) ELT 590 (Tribunal) 10. The learned AR further submitted that the goods cleared by the appellants have been subjected to the process amounting to manufacture as even in the case of unpacked goods it is not disputed that they were putting the labels and the definition under Section 2(f)(iii) very clearly mentions that labelling will amount to manufacture. It was submitted that the word label is not with reference to the container. In any case, as admitted by the appellant, these goods are not being packed because of their size. In such a situation even putting a label on the equipment will deem to be putting a label on the container. 10.1. It was further submit....
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....cases: G. Claridge & Co. vs. Commissioner of Central Excise 1991 (52) ELT 341 (SC); Parksons Printers vs. Commissioner of Central Excise 1996 (86) ELT 603 (T) It was submitted that when the term container is found independently, in a broad sense it indicates a receptacle which contains and in a narrow sense a receptacle in which articles are covered or enclosed. Hence, the term container cannot be synonymous with a unit packing or a package or a closed receptacle. It was submitted that the goods are received by the appellant in cartons, wooden and tin cases and are subject to, in some cases, unpacking and repacking and labeling and in some cases the goods were unpacked and then put in pre-printed pouches. In some cases, goods are labelled whether with a tag or sticker or label containing relevant information which is important to the appellant and its buyer and to the process of sale and consumption of such goods. It was his submission that in view of this position the process undertaken by the appellant helps in marketing of the goods also. 11. Circular No. 22/90-Cx dated 11/07/1990 pertains to exemption Notification No. 61/86-CE and Circular No. 262/15/86/Cx dated 14/07/1987 ....
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....that the appellants have not submitted any document either before the adjudicating authority or before this Tribunal and hence there is no question of remand for deciding liability of CENVAT credit in view of judgment of Hon'ble Supreme Court in the case of Kores India Ltd. vs. Commissioner of Central Excise 2004 (174) ELT 7 (SC) which is re-affirmed in Kores India Ltd. vs. Commissioner 2015 (318) ELT A252 (SC). 12.1. As far as the plea of benefit of cum-duty is concerned, it is submitted that benefit of cumduty cannot be extended in the present case in view of the following case laws: Amrit Agro Industries Ltd. vs. CCE, Ghaziabad 2007 (210) ELT 183 (SC) Ahmednagar Rolling Mills Pvt. Ltd. vs. CCE, Aurangabad 2014 (300) ELT 119 (Tri.-Mumbai) 12.2. The learned AR submitted that as far as extended period of limitation is concerned, it cannot be said that the appellant were not aware of the provisions of Section 4A or the parts are not covered under Section 4A. In fact they themselves were importing parts of scania trucks on which they were paying CVD as per Section 4A. Once at the time of import, they were paying duty under Section 4A, it was their duty to take Central Excise ....
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.... assy, hyd tank, fuel tank assy (osp), etc. Most of these items are used in car, trucks and other vehicles. Car, trucks, etc. are even according to appellant are automobiles. Description of parts components and assemblies clearly indicates these are parts, components and assemblies of automobiles. 14. Relevant sections, notifications and circulars are as under: 14.1. Section 2(f)(iii) of the Central Excise Act, 1944 reads as under:- (f) manufacture includes any process,- i) (ii) (iii) which, in relation to the goods specified in the Third Schedule, involves packing or repacking of such goods in a unit container or labelling 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, and the word manufacturer shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in their production or manufacture on his own account. 14.2. Vide Section 66 of the Finance Act, 2006 the Third Schedule to the Central Excise Act, 1944 was amende....
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....ated the 1st March, 2006, G.S.R. 113(E), dated the 1st March, 2006, namely:- In the said notification, in the TABLE, after S. No. 96 and the entries relating thereto, the following shall be added, namely:- (1) (2) (3) (4) 97 Any heading Parts, components and assemblies of automobiles 33.5% 98 3808 30 40 Plant-growth regulator 30% 99 9603 21 00 Toothbrush 28.5%. 2. This notification shall come into force on the 1st day of June, 2006. 14.5. On 24th December, 2008, above Notification was replaced by Notification No. 49/2008-C.E. (N.T.) However, there was no change in the description of entry with which we are concerned except that abatement percentage was reduced from 33.5% to 30%, and was listed as entry No. 108. 14.6. The Notification No. 49/2008-C.E. (N.T.) was amended vide Notification No. 9/2010-C.E. (N.T.) dated 27/02/2010 and the said entry was replaced as:- S. No. Chapter Heading, sub-heading or tariff item. Description of goods 108 Any Chapter Parts, components and assemblies of vehicles (including chassis fitted with engines) falling under Chapter 87 excluding vehicles falling under headings 8712, 8713, 8715 and 8716 14.7. The said ....
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....ment of Revenue) New Delhi Subject: Cess on automobiles - Clarification Regarding. A doubt has arisen whether Earthmoving machinery is leviable to cess under the Automobile Cess Rules, 1984. 2. The matter has been examined in consultation with the Ministry of law which has opined that since Earthmoving machinery including dumpers fall under item 11 of the 1st Schedule to the I (D & R) Act, 1951 and not under Heading 7(5) of the said schedule, no cess would be chargeable on the same under the Automobile Cess Rules, 1984. The opinion of the Law Ministry has been accepted by the Board. 14.13. Board's Circular No. 22/90-CX.4 dated 11/07/1990 which reads as:- Circular No. 22/90-CX.4, dated 11/07/1990 [From F. No. 156/15/90-CX.4] Government of India Ministry of Finance (Department of Revenue) Central Board of Excise & Customs, New Delhi Subject: Whether benefit of Notification No. 61/86-C.E., dated 10/02/1986, as amended would be extended to Driver's Seats of Hydraulic Excavators or not - Clarification regarding. Doubts have been expressed regarding extension of benefit of Notification No. 61/86-C.E., dated 10-2-1986 to drivers seats of hydraulic excavator....
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....unaware of the said judgment, Board issued Circular on 16/12/2008. 14.15. Boards Circular No. 167/38/2008-CX.4 dated 16/12/2008 is as under:- Automobile parts, components and assemblies - Scope, for MRP based valuation F. No. 167/38/2008-CX 4, dated 16-12-2008 Government of India Ministry of Finance (Department of Revenue) Central Board of Excise & Customs, New Delhi Subject: MRP based assessment - Clarification regarding the scope of entry No. 97 of the Notification No. 2/2006-C.E. (N.T.) inserted vide the amending Notification No. 11/2006-C.E. (N.T.) [Present entry No. 107 in the Notification No. 14/2008-C.E. (N.T.)] - Regarding. References have been received from the field formations regarding the scope of above mentioned entry. The entry reads as under: S. No. Chapter Heading, subheading or tariff item of the First Schedule. Description of goods Abatement as a percentage of retail sale price 97 Any heading 33.5% 2.1 The first issue is regarding interpretation of term automobiles. The said term has not been defined in the Notification, hence its general meaning needs to be considered. In this regard, reference may be made to the ....
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....ovisions, circulars and case laws and arguments of both sides (which were repeated in the present case), this Tribunal has observed as under: 17.1 We have considered the rival submissions, and given considerable thought to these submissions. At the outset we note that all the items in question viz. Loader, Backhoe Loader and Road Roller are self propelled, work with internal combustion engine using fuel such as diesel, have four wheels and are rubber tyred (road roller may have two rubber tyres and one roller, or only rollers). These move also on roads. Thus, these have all the characteristics of motor vehicles. In addition, these items have attachments which enables to execute and move earth, mud etc. from one place to another. In case of road rollers, it helps in compacting and setting the road due to vibrating techniques in compaction jobs. 17.2 We also note that these items require registration under Motor Vehicle Act, 1988. We also note that before permitting any motor vehicle on the roads, Motor Vehicle Act requires the vehicles to be examined/tested by specified institutions regarding suitability to ply on road etc. and based upon the appropriate certification, motor veh....
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....ding vires of the impugned Act before us or to its retrospectively but have addressed us only on the fact situation to contend that the Dumpers (which includes Rockers) are vehicles not adapted for use upon roads and, therefore, they are outside the scope of Section 2(b) of the impugned Taxation Act, 1975 and hence not within the ambit of the charging Section. Section 3(1) provides that subject to the other provisions of the Act, on and from the date of commencement of the Act, there shall be levied on motor vehicles, used or kept for use within the State, a tax at the rate specified under the Schedule. It is evident that the tax is chargeable on using or keeping for use a motor vehicle; a motor vehicle adapted for use on roads. Not it has to be seen whether Dumpers and Rockers are motor vehicles adapted for use on roads. 8. Reverting back to Bolani Ores case, it would be found that the preamendment definition of Section 2(18) conveyed that though they were motor vehicles as such, within the meaning of the first part of the definition, but nonetheless were not so because of their specified user, i.e., if they were used solely upon the premises of the owner. It would also be found....
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....e provision was read as suitable in Bolani Ores case by interpretation on the strength of the language in Entry 57, List-II of the Constitution. Thus on that basis it was idle to contend on behalf of the appellants that Dumpers and Rockers were neither adaptable nor suitable for use on public roads. Thus on, the fact situation, we have no hesitation in holding that the High Court was right in concluding that Dumpers and Rockers are vehicles adapted or suitable for use on roads and being motor vehicle per se, as held in Bolani Ores case, were liable to taxation on the footing of their use or kept for use on public roads; the network of which, the State spreads, maintains it and keeps available for use of motor vehicles and hence entitled to a regulatory and compensatory tax. (Exemptions claimable apart). The appellants, therefore, in our view, have not case for grant of any relief in these appeals. 17.6 We also note that Hon'ble High court of Madras in the case of Ashok Leyland Ltd.(supra) has held that:- "Merely because the equipment in this case viz. Beaver Rear Dumper is capable of being put on the road and is also capable of carrying loads over long distances, it does no....
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....)-GJX-0443-RAJ. Here the issue was road transport vehicles were excluded from the Investment Allowance and Income Tax department was denying the Investment Allowance considering tipper and hydraulic excavator as road transport vehicle. Hon'ble High Court took the view that these are non-transport vehicle by virtue of explanation attached to the definition. We do not consider this helps the cause or respondents as issue is about Parts, Components & Assemblies of Automobiles and not of non-transport vehicles. 17.10 To us the inevitable conclusion from the facts as also various judicial pronouncement is that Loader, Backhoe Loaders & Road Rollers are motor Vehicle. 18.1 The next question that arises is having come to the conclusion that Loader, Backhoe Loaders & Road Rollers as motor vehicle, whether parts, components and assemblies of three items are "Parts, components and assemblies of Automobile." 18.2 The word automobile' is not defined in the Central Excise Act or Central Excise Tariff Act. Ld. Senior Advocate for respondent have quoted meaning of the said term from various dictionaries. From the said meaning, it appears that word is used for what is popularly under....
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....used in the Notification along with railway carriages and the aircrafts, any restricted meaning given to it does not appear to be consistent with the scheme discerned from the reading of the notifications as a whole. 43. As observed by the Hon'ble Supreme Court in the case of Jain Engineering Company v. Collector of Customs, Bombay, 1987 (32) E.L.T. 3 (S.C.), paragraph 7, when the intention is clear and manifest it will be unreasonable to take a narrow view of the Notification. 44. As explained by the Hon'ble Supreme Court in Collector of Central Excise v. Parle Exports Private Ltd. 1989 (38) E.L.T. 741 (S.C.)] and Tata Oil Mills Company Ltd. v. Collector of Central Excise 1989 (43) E.L.T. 183 (S.C.)], in interpreting the scope of any Notification, the Court has first to keep in mind the object and purpose of the Notification. All parts of it should be read harmoniously in aid of and not in derogation of that purpose. 45. According to the "Noscitur A Sociis" principle, which means that "the meaning of a word is to be judged by the company it keeps", it could be safely said that the exemption was intended to all variants of steel seats for carriage or conveyance used o....
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....Advocate is that Board's Circular dated 16.12.2008 stated that hydraulic excavators cannot be treated as automobiles and this Circular is binding on Revenue Officials and a stand contrary to that is not permissible. We have gone through this Circular. We note that this is not a Circular under Section 37B of the Central Excise Act so as to make it binding on the officials. We also note that this Circular does not clarify which type of hydraulic excavators is being discussed. Hydraulic excavators having their own track are not considered as motor vehicle or automobile. Further we note that this Circular is based upon Circular No. 22/90-CX. 4 dated 11.07.1990. At that point of time Hon'ble Supreme Court judgment in the case of Bose Abraham (supra) holding that excavator and road rollers are motor vehicles was not available. We also note that this tribunal has already held contrary to what is stated in the Circular dated 11.07.1990 in the case of Krishna Fabricators p. Ltd. (supra) which is turn relied upon Hon'ble Supreme Court and Hon'ble Madras High Court judgments. It appears to us that Circular dated 16.12.2008 has been issued without taking into consideration abov....
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....atter was sub-judice before a Court or a Tribunal, the Court or Tribunal would also give effect to circulars of the Board in preference to a decision of the Constitution Bench of this Court. Where as a result of dispute the matter is sub-judice a Court/Tribunal is, after Dhiren Chemical's case, bound to interpret as set out in that judgment. To hold otherwise and to interpret in the manner suggested would mean that Courts/Tribunals have to ignore a judgment of this Court and follow circulars of the Board. That was not what was meant by Para 9 of Dhiren Chemical's case." 18.9 Hon'ble Supreme Court in the case of Commissioner of Customs, Calcutta Vs. Indian Oil Corporation Ltd. reported in 2004 (165) ELT 257 (S.C.) - 2004-TIOL-23-SC-CUS has observed as under:- "25. As is evident from Section 151A the Board is empowered to issue orders or instructions in order to ensure uniformity in the classification of goods or with respect to levy of duty. The need to issue such instructions arises when there is a doubt or ambiguity in relation to those matters. The possibility of varying views being taken by the Customs officials while administering the Act may bring about uncerta....
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....ew that even if the Circular dated 16.12.2008 is with reference to Hydraulic Excavators which are motor vehicle, the same is required to be ignored in view of decisions on the issue by Higher Judicial forums. We therefore do not find any merit in this contention. 18.11 Another contention of Ld. Senior Advocate was that in chapter 73, Heading 7326 910 the words used are "For automobiles and earth moving equipment" and therefore two are different. We do not find any substance in this contention, both the words are used together and therefore indicates that these are same category of goods. In any case, automobile is not defined. We therefore do not find merit in this contention. 18.12 In the result, appeal succeeds on merit i.e. Parts, components and assemblies of Loader, Backhoe Loader and Road Rollers are covered by "parts, components and assemblies of Automobiles." 16. In the case of JCB India Ltd.(supra), parts were of the equipments viz: Loaders, Backhoe Loaders and Road Rollers, while in the present case the parts are of scania trucks, dumpers, motor graders, wheel loaders, dozers and hydraulic excavators. 16.1. As far as parts of scania trucks are concerned, eve....
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....B India Ltd. The learned Commissioner (AR) has submitted copy of the Automotive Industry Standard AIS 53, published in 2005 by the Automotive Research Association of India, Pune wherein road vehicle which include the construction equipment vehicle has been defined as under: construction equipment vehicle means rubber tyred, (including pneumatic tyred), rubber padded or steel drum wheel mounted, self-propelled, excavator, loader, backhoe, compactor roller, dumper, motor-grader, mobile crane, dozer, fork lift truck, self-loading concrete mixer or any other construction equipment vehicle or combination thereof designed for off-highway operation in mining, industrial undertaking, irrigation and general construction but modified and manufactured with on or off or on and off highway capabilities. The said definition includes excavator and the definition also includes rubber tyred excavator, pneumatic tyred, rubber padded or steel drum wheel mounted, thus, even the crawler steel plate type of excavator which the appellant is claiming would be covered by the said definition/standard. Thus, whether the excavator are running on the rubber tyre or are crawler type i.e., steel drum wheel mou....
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....produce the same. We do not find any merit in the contention. First of all, the show cause notice propose to consider all the six items including excavator, motor graders, wheel loaders, dozers, etc. under the category of automobiles. It is just that to reach to the correct conclusion additional published material from the Bureau of Indian Standards and Automotive Indian Standards have been produced during the arguments. In fact, learned senior counsel, as a matter of routine, submits such documents before the Tribunal and Tribunal accept such documents. In any case, when these submissions were made and copies of the documents were handed over to the learned senior counsel for the appellant, he was also given time to rebut the contentions of the Commissioner (AR), which he did after a day. Thus, the learned counsel has been given sufficient opportunity to rebut the same. 19. We also note that the learned counsel for the appellant has argued on the binding effect of the circulars. This whole issue has been discussed in para 18.7, 18.8 and 18.9 of this Tribunals order in JCB India's case reproduced earlier. 20. We also note that Commissioner (AR) has rightly pointed out the jud....
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....ion 2(f)(iii), learned senior counsel has submitted that the said section was introduced in 2003 and at that point of time in the explanation to the Finance Bill it was clarified that this would be applicable to items covered under Section 4A. We have gone through the definition as provided under Section 2(f)(iii) which is also reproduced in the earlier part of this judgment. We do not find anything in Section 2(f) (iii) linking the said definition of manufacture to only goods covered by Section 4A. In fact, if that was the intention, there was no need to create a Third schedule in the Central Excise Act, and there should have been a straight linkage in the definition of manufacturer in Section 2(f) (iii) with Section 4A. It may be true that generally items covered by Third Schedule to the Central Excise Act, 1944 are same as covered under Section 4A. What is to be seen is, whether an item is covered by third schedule to the Central Excise Act, and if so, whether the activity carried out is covered by Section 2(f)(iii) and if so the same would be amounting to manufacture. Further, if the goods satisfy the requirements of Section 4A for the purpose of valuation Section 4A will be fo....
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....n of India & Others (1980) 4 SCC 341 wherein it was held as under: 25. It is now axiomatic that when a legal fiction is incorporated in a statute, the Court has to ascertain for what purpose the fiction is created. After ascertaining the purpose, full effect must be given to the statutory fiction and it should be carried to its logical conclusion. The Court has to assume all the facts and consequences which are incidental or inevitable corollaries to giving effect to the fiction. 25.1. In celebrated passage Lord Asquith of Bishopstone in East End Dwellings Co. Ld. v. Finsbury Borough Council (1952) A.C. 109, said: If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from, doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. 25.2. In the State of Bombay v. Pandurang Vinayak Chaphalkar and Others [1953] S.C.R. 773, Hon'ble Supreme Court held (at page 132) while approving the above passage of Lord-Asquith: When a statute enacts that something shall be deemed to have been done, which in fact and truth was not ....
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....7/02/2010 and 29/04/2010. Under the said Notification the term automobile was replaced by specific headings of the Central Excise Act Tariff. Thus, after the said date, there can be no confusion or dispute about the fact that the goods are covered by Section 2(f)(iii) and appellant's activities amounts to manufacture. But appellants still did not pay duty. Not a single word is being uttered for such a conduct. 29. Learned senior counsel for the appellant submitted that the third schedule was amended in 2011 with retrospective effect and hence extended period of limitation cannot be invoked. We have given consideration thought to this submission and are of the view that, in the facts and circumstances of the case, the submission is required to be out rightly rejected. Even if it is assumed that they did not pay duty during February/April 2010 to April 2011, due to unamended third schedule, the least that was expected was to pay immediately in April/May 2011. Such a conduct is not expected from a reputed company. In fact, we also observe that at the stay stage the, advocate for the appellant has submitted a worksheet where he claimed that duty liability from February/April 2010 ....
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....ill have to be checked by the excise authorities. We also observe that even though the appellant was paying CVD on the basis of MRP but they arrived at the MRP based upon certain calculations and not based upon the actual MRP label on the parts. Thus, it was the duty of the appellant to take registration and pay excise duty on the parts of scania trucks. Other parts, we observe were not being imported by them and were being imported by Komatsu India Pvt. Ltd. and thereafter being transferred/purchased by the present appellant. They were also getting the parts from other local sources. It is also an admitted fact that thereafter they were doing labeling, re-labelling, etc. Such parts included that of dumper. Under the circumstances, it cannot be said that the appellant were not aware of the fact that the goods are covered under Section 4A. The ratio of JCB India Ltd. case (supra) as far as invocation of limitation and penalty, is therefore, not applicable. In that case, M/s. JCB India Ltd. has started paying duty from April 2010. In the present case, even that was not done. Extended period of limitation as also imposition of penalty under Section 11AC is upheld. 31. We also note th....
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....me and set aside the impugned order as far as the benefit of cum-duty is concerned. 34. Learned senior counsel for the appellant has submitted that in the event the goods are being held as chargeable to duty under Section 4/4A they would be entitled to availment of CENVAT credit on the inputs used. Learned Commissioner (AR) opposed the said submission on the ground that they have not submitted any documents during adjudication or before this Tribunal. Learned senior counsel, on the other hand, submitted that after the personal hearing was over but before the adjudication of the case, they have submitted a CD containing the details of the invoices of the parts received by them during the period. Since the learned counsel has submitted that they have invoices and other documentary evidence to prove the duty-paid nature of the goods received by them and also evidences about the receipt of the goods, etc., in our view, it will be appropriate that benefit of CENVAT credit be extended to them. We also note that during the hearing the learned senior counsel has submitted a chart in respect of parts of each vehicle claiming how much the CENVAT credit would be available. Keeping in view th....