TaxTMI 
TaxTMI 
2019 (4) TMI 160
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.... activity undertaken by the appellants to manufacture for the period 2010-11 to 2011-12 by way of issuing the show cause notice dt. 08.12.2014. 2. The facts of the case are that the appellants are engaged in trading of parts of earthmoving equipment/excavators and receive parts in bulk and sell them after consolidation by putting in polythene bags/wooden boxes/gunny bags as the case may be without any labeling etc. The officers of Central Excise visited the premises of the appellants on 06.09.2011. As the earthmoving equipments/ excavators fall under Tariff 84264100, 8427, 8429 and 843010 of the First Schedule to the Central Excise Tariff Act, 1985, therefore, in terms of Section 2(f)(iii) of the Central Excise Act, 1944, the activity of....
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....rchase from the appellants is never in the packing of 'HP/Hytech' except a few items which are purchased by the appellants from the vendors with original packing of 'HP/Hytech' such as seals and tooth point which are either imported or procured from manufacturers such as M/s Elofic Filters with pre-printed "Hytech" brand. There is no evidence of any branding being done by the appellants. No equipment/machinery has been found by the officers which establish printing of logo of any brand of 'HP/Hytech' on the goods. No goods have been found at any premises of the dealers/buyers with brand of 'HP/Hytech' despite the fact that the department approached a number of dealers. Further, he submits that the goods worth Rs. 1,06,26,669/- were also sei....
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....dition of Section 2(f)(iii) of the Act is not fulfilled and they are not liable to pay the duty. To support of his contention, he relied on the decisions in the cases of Sree Leathers vs. CCE, Kolkata-V - 2012 (275) ELT 225 (Tri. Kolkata), Dodsal Corporation Pvt Ltd vs. CCE, Bangalore - 2011 (263) ELT 719 (Tri. Bang.), CCE, Mumbai vs. Shalimar Super Foods - 2007 (210) ELT 695 (Tri. Mumbai) and CCE, Chennai vs. Rajam Condiments - 2009 (245) ELT 706 (Tri. Chennai). 4. He further submits that on the date of seizure of the goods, the provisions of Section 2(f)(iii) were not applicable to the facts of this case as the said provisions came in the Finance Act, 2011, therefore the seizure is illegal. 5. He further submits that the adjudicatin....
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.... other hand, the Ld. A.R. for the Revenue relies on the decision of M/s Larsen & Toubro Ltd (supra). 7. Heard the parties and considered the submissions. 8. In this case, the facts of the case are not in dispute that the appellant is a trader and receiving the parts in bulk and sell them after consolidation by putting in polythene bags/wooden boxes/gunny bags as per the requirement of the buyers. The case of Revenue is that the activity of packing/re-packing by the appellant amounts to manufacture in terms of Section 2(f)(iii) of the Act, therefore, they are liable to pay duty on their activity. For better appropriation, the provisions of Section 2(f)(iii) of the Central Excise Act, 1944 are incorporated as under: "2(f) "manufactur....
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....h retrospective effect under Section 73 of the said Act w.e.f. 29.04.2010 i.e. at par with amendment to Notification issued under Section 4A of the Act. However, again an error was committed by the Legislature by specifying the goods in the non-existent third schedule to the Central Excise Tariff Act, 1985 and the third schedule was amended by the Finance Act, 2012 w.e.f. 28.05.2012 and whole of the period for which demand has been raised against the appellant is prior to the said amendment dt. 28.05.2012. In this situation prior to 28.05.2012, there was no deeming provision to demand duty under Section 2(f)(iii) of the Central Excise Act, 1944 and the introduction of such amendment which was made effective retrospective, the extended perio....