TaxTMI 
TaxTMI 
2018 (4) TMI 286
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.....4/97 dt 01/03/1997. These notifications granted the benefit of 'nil' rate of duty 'for DC Defibrillators for internal use and pacemaker". The Departmental officers took the view that the goods manufactured by BPL were not eligible for the benefit of exemption notification. The issue was originally decided by the jurisdictional Commissioner vide his order No.01/2003 dt 22/02/2003 in which the benefit was denied and the Central Excise duty at the merit rate of 5% was confirmed against them. The Commissioner also approved the demand to be confirmed for the extended period of limitation. Against the said order of the Commissioner, the appellant filed appeal before this Tribunal. There was a difference of opinion between the Members of the Tribunal and the case was referred to the Third Member. By majority, the Tribunal came to the conclusion, vide the order No.286/2004, that M/S, BPL was not eligible for the benefit of the notifications supra. However, the issue regarding the limitation was referred for a decision by the Third Member to the regular Bench for a decision. The Division Bench, in turn, considered the issue of limitation and vide the Final Order No,1253/2....
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.... advocate submitted that the dispute in the present case is one of classification and whether the goods in question are eligible for the benefit of the notification. It cannot be said that the Classification Declaration was filed with a view to suppress facts or wrongly claiming the benefit of the notification. iv. She also referred to various case laws, in which it has been held that when the issues are referred to Third Member in the Tribunal, it is to be presumed that it was a contentious issue and two views are possible on the issue. She specifically referred to the decision of the Hon'ble Supreme Court in the case of Jaiprakash Industries ltd. vs, CCE, Chandigarh [2002(146) ELT 481 (SC)] in which the Apex Court has observed that where there were divergent views of various High Courts, there was a bona fide doubt as to whether or not the activity amounted to manufacture. v. She finally submitted that the details of the goods manufactured were declared by M/S. BPL in the Classification Declaration. The fact that the Department took the view that the benefit of the notification is not applicable to them does not mean that M/S. BPL has suppressed the facts. 6. 1 Learned A....
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..... However it has been claimed that the goods can be used for internal use. 10. The dispute regarding eligibility of the goods manufactured by the asseseee to the benefit of the notification came up before this Tribunal. Different views were taken by Member(Judicial) as well as Member(Technical). The issue was referred to the Third Member who decided that the assessee will not be eligible for the benefit of the notification. The Hon'ble Supreme Court in para 22 has observed that the "......law on this issue was not free from doubt which can be gathered from the fact that when the impugned judgement of the Tribunal is not unanimous........" 11 In the facts and circumstances of the present case, we are of the view that the benefit of the notification was a contentious issue. The assessee appears to have declared only the model number of the DC Defibrillators manufactured by them and claimed the benefit of the notification. It cannot be said that the benefit was claimed by suppressing any fact. 12. The learned AR has extensively quoted from and related order passed by the Tribunal No. 1253/2004 in which the Tribunal has taken the view that the assessee has suppressed the facts. ....
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....rrived at after giving opportunity to both the parties and considering all relevant materials. Such finding cannot be assailed in this appeal. The functional approach to the identity of the goods as canvassed by the appellant was also duly considered by the Tribunal. It was contended that the function of the nuts was not only to fasten but also to enable the flow of oil under high pressure without leakage. But the Tribunal noted that the flow of oil is possible only after nuts are fastened. To that extent, according to the Tribunal, it can be stated that nuts permit the flow of oil without leakage. The question is, however, not as to what is the process facilitated as a result of the nuts, but the question is, which the Tribunal itself posed is - whether the nuts are fasteners or do they have any other independent function? The Tribunal found that it had not been shown before them that they had any such independent function. To say that these nuts are leak proof. was only to reiterate the fact of their essential character and quality as fasteners and not to substantiate any argument as regards their independent function. In that view of the matter, the Tribunal even taking the func....