2020 (1) TMI 481

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....Act, 1944. Penalty of Rs. 61,94,772/- has also been imposed upon the appellant in terms of Rule 14 of the Cenvat Credit Rules read with Section 11AC of the Act. 2. The appellant carried on the business of manufacture of cut to length line, hydraulic power pack, double action press, spinning machine, disc and coil car parts etc. falling under various sub-headings of Chapter 84 of the First Schedule to the Central Excise Tariff Act, 1985, at its factory at Barjora in the district of Bankura in the State of West Bengal. According to the appellant, they procured input materials from one M/s.Ishaan Technologies Pvt. Ltd., Meghalaya and Manaksia Ltd., EPIP, Amingaon, Guwahati, Assam (in short, "the suppliers") which comprised of parts/equipments and utilised the same for manufacturing of Briqueting Hydraulic Press (Bailing Press) and Cut to Length Line and Continuous Automatic Coil to Coil Colour Coating Line, with Operational Spares. The said goods were thereafter exported through the Haldia port by the appellant, including in CKD condition, upon payment of duty and claiming rebate in terms of Rule 18 of the Central Excise Rules, 2002 and Notification No. 40/2001-CE (NT) dated June 2....

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....Senior Advocate appearing for the appellant contended as under: (a) There has been no irregular availment or utilisation of cenvat credit. Assembly of different customised machines according to specified designs, even in the manner stated in the show cause notice and the impugned order, is a manufacturing process within the meaning of Section 2(f) of the Act. In support of this he has relied upon the following decisions: (i) Flex Engineering Ltd. Vs. Commissioner of Central Excise, 2012 (276) ELT 153 (SC) (ii) Narne Tulaman Manufacturers Pvt. Ltd. Vs. Collector of Central Excise, 1988 (38) ELT 566 (SC) (iii) Bharat Coking & Coal Ltd. Vs. Commissioner of Central Excise, 2001 (127) ELT 758 (T-Cal) (iv) Sheth Computers Pvt. Ltd. Vs. Collector of Central Excise, 2000 (121) ELT 738 (T) (v) BPL India Ltd. Vs. CCE, 2002 (143) ELT 3 (SC) (vi) Poonam Spark (P) Ltd. Vs. CCE, 2015 (322) ELT 413 (SC) - affirming Poonam Spark (P) Ltd. Vs. CCE, 2004 (164) ELT 282 (SC) (vii) Leo Circuit Boards Pvt. Ltd. Vs. CCE, 2015 (330) ELT 227 (T) (viii) Majestic Auto Ltd. Vs. CCE, 2001 (130) ELT 551 (T) (ix) Koron Busin....

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....so therefore legal, valid and allowable. (f) Further, the show cause notice and the demand pertaining to the period July 2004 to December 2004 (out of the total period of July 2004 to December 2005) is barred by limitation, the show cause notice having been issued beyond the prescribed period of one year as contained in Section 11A(1) of the Act. The extended period of limitation as per the Proviso to Section 11A(1) of the Act is inapplicable in as much as there was no suppression of any material fact or willful misstatement by the appellant with intent to evade duty. All relevant and material facts were made known and/or were within the knowledge of the jurisdictional Central Excise authorities at all relevant and material point of time. Monthly returns in the statutory RT- 12/ER-1 forms were duly submitted by the appellant, along with copies of RG-23A Part I and Part II, RG-23C Part I and Part II, TR-6 challans and copies of invoices on the basis of which credit of duty were availed of. All relevant information relating to the goods purchased and on which Cenvat credit was obtained were there. Further, the jurisdictional Superintendent and Inspector of Central Excise ver....

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....n fact the issue sought to be decided by the Commissioner was, as would appear from the last 3 lines of the said continuing paragraph, "whether the process of assembling undertaken by the noticee tantamount to manufacture". In the subsequent paragraph the Commissioner, for the reasons stated therein, has held that "in the instant case the noticee in fact has done 'assembly' of CKD (completely knocked down) or SKD (semi knocked down) components only" and that such "assembling of components" does not amount to manufacture. Consequently, the decisions of the Courts and Tribunal, relied upon by the appellant fully apply to the instant case and, on application thereof, the impugned order cannot be sustained. (ii) In the impugned order the Commissioner has specifically observed that the aspect of old and used goods is "not relevant for deciding the issue", according to him. It is on this basis the Commissioner refused allowing cross examination of the Chartered Engineer. Inspite thereof the Learned Authorized Representative has sought to rely upon this contention, thus traversing beyond the order itself. This submission of the Learned Authorized Representative is also therefore ....

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.... to 'manufacture' within the meaning of Section 2(f) of the Central Excise Act, 1944. 12. In the case of Bharat Coaking & Coal Ltd. Vs. Commissioner of C.Ex., 2001 (127) ELT 758 (T-Cal) it was contended on behalf of the assessee that the process of fitting and assembling of duty paid bought out parts of coal tubs did not amount to manufacturing activity within the meaning of Section 2(f) of the Central Excise Act, 1944. Rejecting the said contention, this Bench of the Tribunal held as under: "3. After hearing Shri R.K. Roy, ld. JDR we do not feel convinced on the arguments of ld. Advocate on this point. The activity undertaken by the appellants is not a simple process of buying of various items from the market and connecting them with each other, as was the case relied upon by the ld. Advocate. We find that the appellants are purchasing the various articles from the market which articles cannot be called, by any stretch of imagination, complete coal tubs. Neither the unwheeled coal tub, nor wheels, nor axels, nor tub blocks can be called a complete coal tubs or can be put to use to which a wheeled coal tub can be put to. the resultant product which emerges after the com....