TMI Blog2012 (12) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... enal provision of Rule 26 of Central Excise Rules, 2002 would be attracted - E/2534-2536/2011 - 648-650/2012-EX(BR)(PB) - Dated:- 16-4-2012 - Justice Ajit Bharihoke, Shri Rakesh Kumar, JJ. REPRESENTED BY : S/Shri B.L. Narsimghan and R. Murlidharan, Advocates, for the Appellant. Shri Nagesh Pathak, DR, for the Respondent. [Order per : Rakesh Kumar, Member (T)]. The facts leading to these appeals and stay applications are, in brief, as under. 1.1 M/s. JCB India Limited (hereinafter referred to as JCB) are manufacturers of excavators, the earth moving machinery and also their spare parts. There is also a spare parts division of JCB - JCB (SPD). While JCB as manufacturing unit have Central excise registration the JCB (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I for - (a) demand of Central Excise duty amounting to Rs. 1,55,85,156/- from TWGI under proviso to Section 11A(1) of Central Excise Act, 1944 in respect of clearances of the earth moving machinery parts to JCB (SPD) during the period from April 2005 to March 2008 alongwith interest on this duty at the applicable rate under Section 11AB ibid; (b) imposition of penalty on TWGI under Section 11AC of Central Excise Act, 1944; and (c) imposition of penalty on JCB and Shri G.R. Sharma, Partner of TWGI under Rule 26 of Central Excise Rules, 2002. 1.2 The above show cause notice was adjudicated by the Commissioner, Central Excise, Delhi-IV vide order-in-original dated 26-11-2007 by which :- (a) the duty demand of Rs. 1,55,85 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges emerges and on this basis, the process amounts to manufacture, that by the processes undertaken by TWGI there is no change in the character and usages and thus the test for the process being manufacture under Section 2(f) is not satisfied, that in this regard he relies upon the judgment of the Apex Court in the case of Union of India v. Delhi Cloth and General Mills reported in 1977 (1) E.L.T. (J199) (S.C.) (para 19), that the duty demand has been confirmed against TWGI by invoking extended period, as while the period of demand is from 1st April 2005 to 31st March 2008, the show cause notice has been issued on 30th April, 2010, that all the transactions regarding receipt of rough forgings from JCB/JCB (SPD) for job work were recorded in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the invoices also mention the part number which shows that the products emerging after the processes undertaken by TWGI on the rough forgings are identified as parts of excavators classifiable under sub-heading 84314990, that since the activity of TWGI amounts to manufacture, the Central Excise duty would be attracted, that longer limitation period has been correctly invoked as TWGI never informed the department about their activity, that the duty has been correctly demanded from TWGI invoking extended period and penalty has been correctly imposed on TWGI and their partner Shri G.R. Sharma and on JCB and in view of the above, the balance of [convenience] is not in favour of granting waiver from the requirement of pre-deposit or staying th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the view that this is not the case for total waiver. However, keeping in view the plea of Shri Narsimghan, learned Counsel for TWGI that even if the duty demand against TWGI is upheld, they would be eligible for Cenvat credit of duty paid on rough forgings and after adjusting the Cenvat credit, the net duty liability of M/s. Tubewell would be around Rs. 50,00,000/- to 60,00,000/-, we direct M/s. Tubewell to pay an amount of Rs. 75,00,000/- (Rupees Seventy Five Lakhs) within a period of eight weeks from the date of this order. As regards Shri G.R. Sharma and JCB are concerned, they are directed to deposit an amount of Rs. 5,00,000/- (Rupees Five Lakhs) each towards penalty within a period of eight weeks from the date of this order. Complian ..... X X X X Extracts X X X X X X X X Extracts X X X X
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