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2016 (4) TMI 625 - AT - Central ExciseManufacture - fabrication of saddles - whether the appellant or the fabricators are the manufacturer of the saddles? - Held that:- “Saddle” is a common name known to the market and the fact that it is not brought and sold in the market could not in any manner diminish its capability of being marketable which is evident from the fact that the appellant themselves use the said saddle in the railway wagons for carrying HR coils, and for such use they consider it as marketable commodity and discharge duty accordingly. There is no doubt that the saddles are excisable goods and accordingly chargeable to duty. For fabrication of similar saddles, when fitted to the railway wagons, the appellant had considered themselves as “manufacturer” and discharged duty even though the said saddles were also fabricated in their own premises from the raw materials supplied by the Appellant to the fabricators against same terms and conditions except that in one case the saddles were fitted in the Railway wagons and in another it were grouted to earth but with the common objective to place the HR coils on the said saddles. Thus, the circumstances in their earlier case decided by this Tribunal earlier is quite different from the present one, therefore, the judgement delivered in connection with fabrication of ladders and staircases at site, would not be comparable to the facts of the present case, accordingly, not applicable. Therefore, we have no hesitation to hold that the appellant are the manufacturer of the saddles. Benefit of Notification NO.61/90-CE dated 20.03.1990 and Notification No.41/94-CE dated 01.03.1994 - Held that:- The sole object for which saddles were fabricated was for its use in storage of the HR coils in the factory premises and grouting has been done by fixing with nuts and bolts only for the purpose of making it stationery, hence, such grouting cannot be considered as construction work. In the result, the appellant also failed to substantiate their claim on exemption from duty on the saddles under the above two Notifications. Invoked extended period - Held that:- We find substance in the argument of the Revenue inasmuch as the appellant is required to disclose the true description of the goods and its classification would be determined on the basis of said declaration vis-`-vis the entries of the respective chapter headings/sub-headings etc. The reverse is not true. Besides, we find that the saddles when manufactured and fitted to Railway wagons appropriate duty was paid but when used in the factory for same purpose treated as non dutiable without any valid reason. Therefore, we are of the view that the fact of manufacture and use of saddles in the factory premises were not disclosed in the respective classification list, therefore the claim of the appellant that all facts were within the knowledge of the department and no facts were suppressed cannot be sustained. Consequently, extended period of limitation is applicable to the facts and circumstances of the present case. Appellant are eligible to the Modvat credit, but, to ascertain the exact quantum of credit, it needs to be remitted to the Ld. Commissioner for verification/scrutiny. Since we have observed that the appellant are eligible to the MODVAT Credit on the duty paid inputs used in the manufacture of 240 no. of saddles and for determination of the exact amount of credit, the matter is remitted to the ld. Commissioner; thus, in our opinion, the penalty and fine be accordingly determined thereafter, but, in any case the respective amount cannot exceed the amount of fine and penalty imposed in the first order dated 16.02.1999.
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