TaxTMI 
TaxTMI 
2026 (2) TMI 838
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....l Hearing. By the Order in Original dated 26.05.2017 the Commissioner of Central Excise, Kolkata -V Commissionerate confirmed the demand of Central Excise duty along with interest and imposed penalties on the appellant firm and the Shri Sethi. Being aggrieved, the appellants have filed the present appeal before the Tribunal. 2. Since both the appeals are arising out of common order, they have been taken up together for disposal. 3. The Ld. Counsel appearing for the appellant firm submits that the appellant is a small scale unit listed in Directorate General of Suppliers and Disposal (DGS&D), Government of India, Rate Contract for supplying Folding Steel Cot frame ( in short Folding Cot ) with or without Plywood Top, Picket Angles and Barbed Wires. On 02.06.2015 the Officers of the Directorate General Central Excise Intelligence (DGCEI), Kolkata Zonal Unit visited the premises of the appellant and seized several records and documents. They have also recorded statements of various persons including the appellant no. 2 herein. He further submitted that the fabricated "Folding Cot Steel Frame" is not "manufacture" within the meaning of 2(f) of the Central Excise Act, 1944 and the....
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....g authority 6. Heard both the sides and perused the appeal papers and documentary evidence placed before us. After completion of the hearing, the appellant submitted a "Short Notes of Arguments" which have taken on record. 7. We find that the contention of the appellant is that they procured M.S. Black Pipe from the market and fabricated by way of cutting, bending by hydraulic press machine, welding it legs with steel frame as per DGS&D rate contract. It is contended that the process of fabrication of cutting, bending and welding to M.S. Black Pipe would not amount to manufacture within the meaning of the definition "Manufacture" under 2(f) of the Central Excise Act, 1944. The appellant is a listed DGS&D Rate Contractor and supplied Folding Cot with Plywood Top to the Indian Para Military Forces, e.g. BSF, CISF etc. It is submitted that the appellant was under impression that Fabrication is not excisable goods and they were also entitled to SSI exemption on a clearance value upto Rs. 150 Lacs as applicable during the material period. We find that the process undertaken by the appellant has resulted in a distinct and a new product, which is marketable as 'folding cot'. Therefo....
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....tention of the Bench an undertaking dated 08.11.2011 given to the DGS&D in respect of declaration regarding outsourcing of Plywood Top "with Folding Cot Steel Frame". The relevant portion of the said undertaking is reproduced below: "Dear Sir, With reference to said subject, we hereby declare that we manufacture the Folding Cot Steel Frame as per R/C specification & drawing and supply the same item against Folding Cot Steel Frame without Plywood Top R/C Item No. 1. For Item No.2 of R/C order i.e. Folding Cot Steel Frame Fitted with Plywood Top, the steel Folding Cots are manufactured by us in our works as per R/C specification & Drawing and we procure Plywood Tops from Plywood manufactures and Traders as per our requirement and specification laid down in R/C. Thus, we do confirm & make this undertaking that the Folding Cots manufactured by us & procure the plywood Tops to be fitted on the Folding Cots which are strictly as per R/C specification & supply order thereof. This undertaking will remain valid for all subsequent RCs and SOs. Submitted for approval please" 10. We have gone through the Contract, copies of the Invoices raised by....
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....appellant from the open market and supplied to the Indian Military. Therefore, it was submitted that the value of trading goods namely Plywood Top cannot be added with value of Folding Cot. 16. Now we take up some of the case laws on the issue. In the case of Neycer India Ltd. Vs Commissioner of Central Excise, Trichy 2005(192) E.L.T. 620 (Tri.-Chennai), the Tribunal has held as under: "4.We have gone through the rival contention. The point at issue is whether the bought out items are accessories or parts of the cistern. In our view, relying on the decision of the Bombay High Court in the case of Koron Business Systems Ltd., the bought out items required to make the cistern functional should be considered as accessories only. These accessories are of different types and made of different materials. At the buyers option, these are supplied by the parts should be included in the assessable value of the cistern. The appellants relied on the decision of the Hon'ble Supreme Court in its judgment in the case of Union of India v. Koron Business Systems Ltd. - 1997 (93) E.L.T. 663 which upheld the judgment of the Bombay High Court. In that case the Bombay High Court held that p....
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....o add the value of the aforesaid components which are not the part of flushing cistern manufactured by the assessee. 18. Relying the Supreme Court's decision, the Kolkata Bench in the case of Sur Iron and Steel Co (P) Ltd. Vs CCE Kolkata-IV - 2018 (363) ELT373 (Tri Kolkata) has held as under : 2. Brief facts of the case are that during the period under consideration, the appellant was engaged in the manufacture of machineries for sorting screening, crushing, grinding, etc. and parts thereof falling under Chapter 84 and also electric welding machine etc. and parts thereof falling under Chapter 85 of the CTA, 1985. 3. In addition, the appellant was doing the trading in the following items : (i) Welding Torch Regulator for Carbon-di-Oxide Welding; (ii) HF Unit Tig Welding; (iii) Control Penal Head, Track, Cable for submerged ARC welding system. 4. On the basis of Audit Report, the Department was of the view that the trading items were bought out items by the appellant and it is the value includible in the assessable value towards on manufactured goods. Accordingly, the duty demand was raised along with penalty. Being aggrieved, ....
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....out these items, as controller 'DISOMAT-C' is sufficient for taking weighment of the system 6.3. In the case of Kerala State Development Corporation Vs Commissioner of Central Excise, reported in 2008(224)ELT 88(T), it has been held as under: "5. The Revenue proceeded against the appellants for inclusion of the value of bought out items, (uncoaded cards, armoured cables, communication cables, etc.) to the assessable value of Attendance Data Management Systems (ADAMS). The original authority demanded duty of Rs. 54,207/- under Section 11A(1) of the Central Excise Act, 1944. Interest under Section 11AB was also imposed. Equal penalty under Section 11AC was imposed. It was submitted that ADAMS is a single piece of machine capable of functioning independently usually installed at the entrance of a office/factory. The cards supplied to the employees are inserted in the slot of the machine and the time is recorded by the machine. It is connected to the computer, by means of cables. Then, the data is recorded and stored in the computer. The appellants used additional item such as cables cards etc. required for installation. The above items were bought from outside. Revenue has so....
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....ase of folding cots, no manufacturing takes place. Hence, they have neither charged Excise Duty, nor remitted the same to the exchequer. Prima facie no specific case has been made out against the appellant to invoke the extended period provisions of the CEA 1944. However, it is also on record that the appellant has agreed to pay the Excise Duty of Rs.58,59,681 for the entire period of demand, without contesting the same on account of time bar. Therefore, we do not find any necessity to impose the penalty equal to the Excise Duty in terms of Section 11 AC of the CEA 1944. Accordingly, we hold that even in respect of confirmed Excise Duty amount of Rs.58,59,681, no penalty is imposable against the appellant firm. In view of our findings that in respect of on plywood top supplied, their value is not includible, the Excise Duty thereon along with interest and penalty imposed stand fully set aside in respect of the appellant firm. 22. The major portion of the confirmed demand amounting to about Rs.2.74 crores [on account of value addition in respect of plywood tops supplied by the appellant], has been held as not legally sustainable and has been set aside along with interest and pena....
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.... 29 92 Radyvat No-1963583600 10] 18/3/2013 -201 13/3/2013 Ter Helen 80/12/3/ 10] 18/3/2013 Chalan No: 89/12/19 -201 13/3/2013 Orcor Nia: Vohicla Noche M/S. ASIAN PLYWOODS MFG. CO. 86 Annexure - A5 130 TAX INVOICE Approved Defence Contractor Office : 4, Tottoo Lano, Flat No. SP 5th Floor, Kolkola - 700 016 Tel. : 033-22522550/ 2585 Fax : 033 22522551 Mobilo : 9830222892 Email : [email protected] Shree Durga Industry Dato 01/09/2018 Data 18/01/2014 Dato 03/10/2013 0 01/2013-14/ 108 Invoice No. 8 97 Chalian No. Your Order No 1-17018/PROY/1054/HONDRF/2013 Meses COMMANDANT 3rd NDRF BN, CUTTACK, R.O. MUNDALI DIST CUTTACK, ORISSA SI. No Onty CUTTACK, ORISSA Description of Gooch Rata Amount Rs. P C ITEM :49 A. SFIPS 2 5 mm/0 6 mm .90390 134561 90 NR OR/ 544 PLYWOOD TOE TO BE FITTED 9 116412 639107 37 NOS. AS PER R/C Pa NO. 773 669 27 TAX INCLUSIVE 0-27 CUTTACK, ORISSA Description of Gooch 773669 AGAINST /NOTE NO: KOLGEN/00080 10010/ IP DT 03/01/2014 by Lovy No: AP 37X 5848 /NOT TOO: C-PP/623/13-14 Rupees Jouer loco seventy three thousand Grand Total 713669 4) E. G. O. E. ....