TaxTMI 
TaxTMI 
2016 (8) TMI 1063
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....of the unit containers of the goods amounted to manufacture in terms of Section 2(f)(iii) of the Central Excise Act, 1944. Show cause notice was issued to the main appellant as well as the individual demanding duty with interest and also for imposition of penalty. The main appellant as well as the individual contested the demands on merits as well as on limitation. The adjudicating authority, after following due process of law, did not agree with the contentions raised and by the impugned order, confirmed the demands raised along with interest and imposed penalties on both the appellants. 3. The learned counsel appearing on behalf of the appellant, after giving us overall picture of the demands raised, would submit that the demand is for the parts of dumpers and parts of others and is fully within the partly extended period. He would take us through the entire legislative intent and submit that the items/parts which are repacked are not parts of automobiles to fall under Third Schedule and/or Section 4A Notification. It is his submission that there was a drafting error and these items were not included in the Third Schedule but were included in the Section 4A Notification. He woul....
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....ctive effect in 2010, the invocation of extended period was upheld in the case in hand wrongly and on all the parts imported by the appellant, they have paid CVD only under Section 4. It is his submission that in the similar situation in the case of JCB India Ltd., the demand has been confirmed only for normal period. He relies upon the judgment of the Hon ble Karnataka High Court in the case of BEML (supra). The demand has been restricted by the Hon ble High Court within the limitation period. It is his submission that personal penalty imposed on the employee of the appellant is not at all justified, hence it may be dropped. 5. The learned departmental representative, on the other hand, would take us through the entire order-in-original. He would submit that the term automobiles and various definitions in the Motor Vehicles Act and the Rules made thereunder, an automotive aspect of the vehicles and the machinery aspect has been considered by the Larger Bench of the Hon ble Supreme Court in the decision of Western Coalfields Ltd. (supra) and held that excavators are motor vehicles under the Motor Vehicles Act. He would submit that the product literature of the parts manufactured b....
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....he appellant has no case as the Tribunal in the case of Larsen and Toubro Ltd. vs. CCE reported in 2015-TIOL-2561-CESTAT-MUM, in paragraph 5, recorded the activity of Larsen and Toubro, which is reproduced below:- "5. In brief, the appellants are dealing in parts, components and assemblies of certain earth moving vehicles, namely, scania trucks, dumpers, motor graders, wheel loaders, dozers and hydraulic excavators. These parts, components and assemblies are either imported by them or procured from a local associate of a foreign company, namely, Komatsu; and procured locally from the manufacturing facilities in Pune/Bangalore. Parts, components and assemblies of automobiles are covered in the third schedule to the Central Excise Act which is required to be read with Section 2(f)(iii) of the same Act. Further, parts, components and assemblies are also specified by notification for purpose of valuation under Section 4A. The appellants contention is that earlier mentioned earth moving vehicles/equipments are not automobiles and therefore parts, components and assemblies being dealt with by them are not covered under Section 2(f) (iii) read with third schedule or Section 4A. The othe....
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....efit of cum duty has to be extended to the appellant, is the law settled by various High Courts and even in the case of Larsen and Toubro Ltd., the Bench had extended such a benefit. Having held so, we find that the quantification of the duty after extending cum duty benefit needs to be redone by the lower authorities. 10. As regards the eligibility to avail cenvat credit of the CVD paid by the appellant on the goods imported, we find strong case in favour of the appellant as it has to be held that if the appellant is saddled with the central excise duty on the ground of deemed manufacture , the pars which have been imported by the appellant in bulk, if they have suffered CVD, the benefit of cenvat cannot be denied as the same parts are considered as manufactured on repacking and central excise duty is paid. On this point also, we hold in favour of the appellant that they are eligible for cenvat credit of the CVD paid, subject to production of duty paying documents/bills of entry on the parts which were imported, repacked and sold. For verification of the claim of the CVD, we remand the matter back to the adjudicating authority to requantify the demands after extending the eligibl....