TMI Blog1989 (5) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... epair work undertaken by them does not amount to manufacture on the ground that the repair involved replacement of important parts of complete transformer and repairing work undertaken by the appellant amounted to manufacture and accordingly duty was leviable on the invoice value charged by the appellant in terms of Notification No. 120/75, dated 30th April, 1975 which included the value of the parts and other ingredients and inputs together with the labour charges on the transformers. The learned Collector (Appeals) had confirmed the findings of the Assistant Collector and has rejected the appeal and the appellant has come in appeal before the Tribunal. 3. Shri D.N. Mehta the learned Advocate who has appeared on behalf of the Appellant first requested for the admission of the additional evidence vide his application received in the Registry on 17th August, 1988. Shri D.N. Mehta the learned Advocate pleaded that he wanted only the following six documents to be admitted as additional evidence and others he did not press the same :- (i) Representation No. ETS/HMM/CE/79/4663, dated 13-6-1979 addressed to Assistant Collector of Central Excise, Division II, Ghaziabad (U.P.) whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appropriate amount of duty has been paid, the repaired transformer would not be liable to duty. 1988 (35) E.L.T. 275 (All.) Roman Electricals, Mathura v. UOI and Anr. Repair of transformers - repair distinct from manufacture - repaired transformers not exigible to duty under Tariff Item 68. 1986 (26) E.L.T. 353 (Tribunal) Shriram Refrigeration Industries Ltd. v. CCE, Hyderabad Repairing/re-conditioning/re-making shall not amount to manufacture 1987 (29) E.L.T. 751 SC Lalitha Industrial Suppliers Co. P. Ltd. v. CCE, Baroda Re-rubberising and re-conditioning of old and used rollers does not amount to manufacture both before and after 14th August, 1986 1980 E.L.T. 538 (Guj.) Suhrid Geigy Ltd., Ahmedabad v. UOI and Others If an Act imposes Central Excise duty on an all India basis, the levy must be collected uniformly from all the manufacturers in the country - levying and collecting excise duty on 13 medicinal preparations only from the manufacturers of Gujarat State was hit by Article 14 of the Constitution - Amounts to discrimination. 6. Shri Mehta, the learned Advocate has also referred to Notification No. 118/75, dated 30th April, 1975. Shri Mehta, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y become fit for consumption. Coal has to be raised from the bowels of the earth, broken, shifted and graded before it can be offered to consumers. To speak of coal as produced in the sense to its being made a material of consumption by human skill and labour is thus entirely correct and has a sanction of approved usage . 8. Lastly Shri Nigam has referred to the Judgment of the Hon ble Supreme Court in the case of Empire Industries Ltd. and Others v. UOI and Others reported in 1985 (20) E.L.T, 179 and pleaded that in view of the Supreme Court Judgment the activity undertaken by the appellant amounts to manufacture. He has referred to Notifications No. 118/75, 119/75 and 120/75 and states that Notification No. 118/75 is not applicable in the present case. He has also referred to a decision of the Tribunal in the case of M/s. Daya Ram Metal Works P. Ltd. v. CCE, Baroda reported in 1985 (20) E.L.T. 392 (Tribunal) = 1985 ECR 1383 (CEGAT) where the Tribunal had held that value of the bought out items is to be treated as cost of manufacture of the finished goods, and the simple fact that the appellant invoiced them separately would not make any difference. He has also argued that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1985. While entertaining the petition on 30th October, 1985 and inviting counter-affidavit the bench directed the Assistant Collector to dispose of the application for refund. But no orders were passed instead an order dated 18th December, 1985 was passed by Superintendent of Central Excise without giving any notice to petitioner to pay duty on manufacture of certain parts used in process of repairs including coils etc. The order was passed presumably because since 24th October, 1983 the revised classification list showing that no duty was leviable on repaired transformer had been approved. On 5th February, 1986 this Court again directed opposite party to comply with its order dated 30th October, 1985. The Superintendent of Central Excise once again directed the petitioner on 4th March, 1986 to submit details of any pay (payment of) duty on old transformer after 24th September, 1983. On same day another notice was given u/s 11A to petitioner to show cause as to why the amount of duty erroneously refunded for period 5th April, 1983 to 29th September, 1983 may not be recovered and on next day, that is, 5th March, 1986 the Assistant Collector issued a notice to show cause as to why th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u) of paragraph of the amendment application averring that petitioner never manufactured or replaced magnetic core as it is not subject to replacement not did any of its customers which is the Electricity Board, only, ever required to replace it has been specifically denied in the counter-affidavit. What is astonishing is that the allegation that Electricity Board never asked the petitioner to replace magnetic core has been replied by saying that it is technical in nature. Refund is claimed of duty paid on parts used in repair. What were these parts, used to be disclosed in monthly returns. Even the classification list approved by department indicated that components which were manufactured and replaced in course of repair. In none of these magentic core was mentioned. At least that is not the finding. And allegations in writ petition and amendment application have not even remotely been attempted to be explained. It has nowhere been mentioned that magnetic core was one of the items which was mentioned in monthly return or classification list. Even in reply to the show cause notice the petitioner had given out the parts which were used by it. The magnetic core was not mentioned in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the goods are intended for such use : Provided further that nothing contained in this notification shall apply to complete machinery manufactured in a factory and meant for producing or processing any goods, even if they are intended for use in the same factory in which they are manufactured or in any other factory of the same manufacturer." Since the coils or other parts if any were produced or even manufactured for captive consumption, they were exempt from duty under aforesaid notification. The payment of duty therefore, on parts produced in the factory but used in course of repairs of transformers was not exigible to duty and payment was collected on it as duty of excise even though it was exempt." 11. Government of India in the case of Electric Equipment Factory -1982 E.L.T. 794 (GOI) had held that in commercial parlance repair was clearly distinct from manufacture and even if new components and fresh materials are used on which the appropriate amount of duty has been paid. It was further held that the process of repairing of transformers was not manufacture as envisaged by Section 2(f) of the Central Excise Act even if new components and fresh materials are used o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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