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2019 (4) TMI 160 - AT - Central ExciseProcess amounting to manufacture or not - trading of parts of earthmoving equipment/excavators and receive parts in bulk and sell them after consolidation by putting in polythene bags/wooden boxes/gunny bags as the case may be without any labeling etc. - case of Revenue is that the activity of packing/re-packing by the appellant amounts to manufacture in terms of Section 2(f)(iii) of the Act, therefore, they are liable to pay duty on their activity - extended period of limitation. Held that:- In this case, the facts of the case are not in dispute that the appellant is a trader and receiving the parts in bulk and sell them after consolidation by putting in polythene bags/wooden boxes/gunny bags as per the requirement of the buyers - the activity of packing/re-packing of the goods in a unit container amounts to manufacture. On going through the process undertaken by the appellant, we find that the appellant is not putting this packing/packed goods in a unit container. In fact, the appellant is packing the goods a bigger carton/gunny bags for ease of transportation to the place of the buyers and the buyers are selling these parts separately without any packing done by the appellant to the ultimate customers - the appellant is engaged in the activity of packing/re-packing of the parts/components of earthmoving equipments falling under Tariff 84264100, 8427, 8429 and 843010 of the First Schedule to the Central Excise Tariff Act, 1985, which has been put at Sl. No. 108 amending the Notification No. 49/2008-CE(NT) dt. 24.12.2008 under Section 4A as notified the items for the purpose of MRP valuation. However, these items were not brought under the ambit of Section 2(f)(iii) of the Act fiction of manufacture, it was only brought in the Finance Act, 2011 with retrospective effect under Section 73 of the said Act w.e.f. 29.04.2010 i.e. at par with amendment to Notification issued under Section 4A of the Act. Extended period of limitation - Held that:- Prior to 28.05.2012, there was no deeming provision to demand duty under Section 2(f)(iii) of the Central Excise Act, 1944 and the introduction of such amendment which was made effective retrospective, the extended period of limitation is not invokable for issuance of the show cause notice as there is no allegation to invoke extended period of limitation such as fraud, collusion, willful mis-statement, suppression of facts or intent to evade duty under Central Excise Act/Rules. Admittedly, whole of the demand in this case has been confirmed by invoking extended period of limitation, therefore, the extended period of limitation is not invokable in the facts and circumstances of the case. The demand against the appellant is not sustainable - appeal allowed - decided in favor of appellant.
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