TaxTMI 
TaxTMI 
2005 (12) TMI 124
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....ej, etc. On the other hand, the appellant's contention is that they are only marketing OFS/WS and the entire system, on which duty already stands paid by the manufacturer of such OFS/WS, is only erected and installed by them at site of customers, from whom they have procured the orders. Thus, it is appellant's contention that mere assembling and installation of OFS/WS already manufactured and cleared by respective manufacturers will not once again result in manufacture of furniture classifiable under chapter 94 and, as such, no duty can again be confirmed against them. 3. It is the appellant's contention that after receiving the orders from their customers, the entire lay out is drawn, which is given to a team of engineers who operate on computer aided design system. On the said system lay out are prepared where ready-made furniture systems and work stations manufactured by independent manufactures, like Kemps & Co. Godrej, Voltas, Alwyn, etc. are superimposed. After settling with the client about number of work stations and other furniture items and the cost of the same, orders are placed upon the manufacturer of the furniture for each works station, which has a predetermined n....
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....lted in passing of an order dated 18-9-97 by the Assistant Commissioner, who held as under :- "As the goods in question are specifically and solely designed as parts or elements of the total furniture systems, they will be appropriately classifiable in the heading in which the system is classified. As can be seen from their Literature as discussed earlier, the Noticee themselves calls it as furniture system. I also find that these partitions which are a part of total system cannot be considered in isolation as they are designed in such a way that a number of other items of furniture can able attached to it by means of nut and bolts which together constitute a work station which is nothing but a furniture system. In such a system partition provides separate compartments in a office hall, attached to these partitions are table tops mounted on angles brackets and cantilever table brackets, the partition also can accommodate electric switches and other items meant for such purpose. Further file racks, drawers, overhead bins, accessory rails are also attached to it which together constitute a item 'furniture'. Even if the partitions are used merely as a wall for a compartment i....
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....cause notice F.No. V(94)/3-90/97 dated 5-8-97 issued to the Noticee on the same issue proposing to reclassify the products under sub-heading 9403.00 and amount involved is Rs. 41,34,266/-. As issue is the same and the Noticee is also same, I am taking both the show cause notices for decision. Therefore, considering all the facts discussed herein above, law laid down by Supreme Court and interpretation of the term "furniture" and "parts" in the context of chapter note (2) of chapter 94 and corresponding explanatory notes in HSN, I hold that the goods in question are appropriately classifiable in the Chapter sub-heading 9403.00 as "other furnitures and parts thereof."" The above order of the Assistant Commissioner was accepted by Kemp & Co., who started clearing the goods as other furniture and discharging duty liability under sub-heading 9403.00. It has been contended before us that M/s. Kemp & Co. not only complied with the above order for future clearance but also paid duty for the past clearance made from 1st August 1996 onwards and paid the differential duty of Rs. 75.50 lakhs. As such, it is the appellant's submission that the entire goods having paid duty as OFS, cannot ....
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....d invoices including the price of the parts equivalent to the purchase order value procured by them from their customers. From these, the Commissioner has concluded that the appellants have intentionally billed their customers for the value added parts evidently to circumvent tax on the value addition on account of various processes carried out such as, assembly of frames and tops, securing storage positions, cutting, trimming and filing of frames, tables and tiles, fixing shade variations and so on. 8.The Commissioner has also observed that as far as M/s. Kemp & Co., is concerned, it is immaterial for them as to whether they cleared the goods as parts/components or complete furniture system as both attract the same rate of duty. He also made reference to the Tribunal's order in the case of Space Age Engineering Projects (P) Ltd. v. Collector of Central Excise, Pune, reported in 1995 (78) E.L.T. 544 (Tri.) wherein it was held that the criteria for classification of goods was the form in which the goods where removed from the factory. As such, he has held that inasmuch as the goods were not removed from the factory of Kemp & C....
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....alize the duty demand against the Modvat credit available on the ground that the requisite procedure was not followed by them, as also on the ground that no documentary evidence like copies of original invoice etc. have been produced before him. 12.The appellant's plea of time-bar has also not been accepted on the ground that they ought to have paid duty on their own. Having not done that, longer period of limitation has to be invoked against them. He has held that billing their customers as if they have sold only parts and components of furniture, is an attempt to wilfully misstate the relevant facts with an intention to evade duty. 13.We have considered the submissions made by both sides and have gone through the impugned orders passed by the Commissioner. The question required to be decided by us is as to whether the appellants are to pay duty on the activity of assembling and installing furniture at their customer's premises out of the various components of OFS/WS. We take note that the Assistant Commissioner having jurisdiction over the factory of Kemp & Co. had classified the goods under heading 9403.00, which covers furniture system. As such, it become clear that what ....
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....d that the assessee cleared only parts of the cranes. It has to be held that it was a complete crane, which was cleared in parts. Similarly, in the case of Flat Products Equipments (I) Ltd. v. Commissioner of Central Excise, Mumbai-III, reported in 2000 (115) E.L.T. 629 (Tri.), it was held that if the parts cleared from the factory are sufficient to constitute a complete machine, it has to be held as clearance of a complete machine, even if such parts were removed in unassembled condition. Tribunal in the case of Hindustan Udyog Ltd. v. Commissioner of Central Excise, Calcutta-III, reported in 2001 (133) E.L.T. 405 (Tri - Kolkata) as also in the case of Commissioner of Central Excise, Delhi-III v. B.H.P. Engineers, reported in 2000 (119) E.L.T. 599 (Tri.) had held that the goods cleared as part shipment of the conveyor for the purpose of convenience of transportation to be assembled at site has to be held as clearance of a complete conveyor system and not parts. By applying the ratio of the above decision, the reasoning of the adjudicating authority that since the goods were cleared as components from the manufacture's factory and not completely assembled as OFS, the same has to be....