TMI Blog2002 (5) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... en issue of notice by the Superintendent earlier could not take away the jurisdiction and authority of the Collector in issuing a notice and passing the order of adjudication. The Tribunal was right in rejecting this contention also. Against assessee. - 2243 of 1999 - - - Dated:- 7-5-2002 - N. Santosh Hegde and Shivaraj V. Patil, JJ. [Judgment per : Shivaraj V. Patil, J.]. - The appellant imported 100 kits of VTR with colour monitors in disassembled condition. These items were described in invoices and bills of entry as "sets of assembly, sub-assembly and other hardware items for assembly of complete VTR and colour monitors". The said goods were subjected to countervailing duty @ 8% ad valorem falling under Tariff Item No. 68. During the period 2-12-1981 to 26-2-1982, the appellant started assembling these goods into VTRs and colour monitors at their factory at Palghat and cleared the sets without payment of duty, without intimation and without observing the Central Excise formalities. 2.The Superintendent of Central Excise, Range-II, Palghat, while perusing advice notes of the factory observed that certain VTRs and colour monitors were manufactured and cleared by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount to manufacture for the purpose of levy of excise duty. According to them, the imported components in SKD condition were only put together by using fasteners; that no manufacturing activity or use of power was involved in the process; the show cause notice dated 2-4-1983 was hit by limitation in respect of the clearances effected prior to 3-10-1982. Extended period of limitation under Section 11-A was not available to the Revenue. The appellant also took up the stand that the valuation adopted was not correct. Further, without completing the proceedings pursuant to the two earlier show cause notices issued, the Collector could not have issued the third notice and proceeded against the appellant in confirming the demand for Rs. 9,43,884.38 and directing the appellant to pay the said duty and imposing a penalty of Rs. 3,00,000/-. 5.The Collector, after considering all aspects, by his detailed order dated 24-7-1987 rejected all the contentions raised by the appellant and confirmed the demand. The appeal filed by the appellant before the Tribunal (CEGAT) challenging the said order of the Collector dated 24-7-1987 was dismissed on 6-3-1997. The application filed by the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were only assembled by using fasteners and as such no manufacturing activity was involved in bringing out VTRs/colour monitors so as to attract the excise duty as demanded. But the contention of the Revenue is to the contrary. 9.This Court in Union of India v. Delhi Cloth and General Mills [1977 (1) E.L.T. (J 199)] defined manufacture thus "The word 'Manufacture' used as a verb is generally understood to mean as 'bringing into existence a new substance' and does not mean merely 'to produce some change in a substance'." Following passage from an American judgment, quoted in Permanent Edition of Words and Phrases Vol. 26, reads thus :- "Manufacture implies a change but every change is not manufacture and yet every change of an article is the result of treatment, labour and manipulation. But something more is necessary and there must be transformation, a new and different article must emerge having a distinctive name, character or use." 10.It is well settled that a question as to when a manufacture of product takes place within the meaning of Section 2(f) of the Act is a mixed question of law and fact. The nature and the extent of processes may vary from case to case. When a ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 246 and 171 and 172 mentioned in the SCN showed the basis of the value adopted in the case of VCR and colour monitor." 13.The contention advanced on behalf of the appellant, that once countervailing duty was paid by them on the same items they were not liable to pay the duty again on the VTRs/colour monitors, was rejected by the Tribunal relying on the decision of this Court in M/s. Narne Tulaman Manufacturers (P) Ltd. v. CCE, Hyderabad [1989 (20) ECR 129 (SC)]. Para 3 of the said judgment reads :- The appellant's contention before the Tribunal was that it"3. was only preparing a part and that part is dutiable as a separate part. The appellant, however, did the work of assembling. As a result of the work of the appellant a new product known in the market and known under the excise item "weighbridge" comes into being. The appellant will become a manufacturer of that product and as such liable to duty. That is precisely what the Tribunal found on the facts of the case. The appellant seems to have been obsessed by the idea that as a part of machine is liable to duty then the whole end product should not be dutiable as separate excise goods. That is mistake, a part may be goods as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he demand notice dt. 2-4-83 is barred by limitation." Agreeing with the finding of the Collector on the question of limitation the Tribunal also in para 13 of the judgment recorded thus :- The next point of the appellant is that longer period of"13. limitation is not invokable in this case. It is seen that the appellant having manufactured the product in question and removed the same without any intimation to the dept. which clearly goes to show that their action was with intent to evade payment of duty. There cannot be any bona fide belief on the part of the appellant in this regard. In these circumstances the contention of the appellant that the removal of the goods without payment of duty was not with intent to evade payment of duty cannot be accepted. Therefore, the duty demanded by invoking the longer period of limitation is in accordance with law." 16.Under these circumstances the contention advanced on behalf of the appellant on the question of limitation is untenable having regard to facts and circumstances of the case. 17.The contention, that the Collector could not have issued one more notice on the same set of facts when the proceeding initiated pursuant to the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
