9911796707
TMI Blog2001 (11) TMI 797X X X X Extracts X X X X X X X X Extracts X X X X ..... ridges, Machine tools and components falling under Tariff Item No. 68 of Central Excise Tariff without obtaining a Central Excise licence. They have further suppressed the actual production and clearance of the said items of their factory by clearing the same under their own invoices as also under the invoices of M/s Bedi & Bedi (Agents) Private Limited, and M/s Bedi and Bedi Tea Processing Systems Private Limited, Bangalore. They have thus cleared the goods so manufactured without filing a price list, without assessing the correct duty liability, without proper accounting, without cover of gate pass and without payment of Central Excise duty and have wrongly availed exemption under Notification No. 105/80, dated 19-6-80 as amended separately for three units, thereby evading Central Excise duty due on the goods cleared by them. M/s Bedi & Bedi (Agents) Private Limited, M/s Bedi & Bedi Tea Processing Systems Private Limited, Bangalore have thus connived and abetted with M/s Bedi & Bedi Private Limited, Bangalore in transporting the goods manufactured by M/s Bedi & Bedi Private Limited, Bangalore without gate passes and have wrongly availed exemption under Notification No. 105/80 dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chine is that these have to be inspected before there are dispatched. As it is before the appellants can fix the machines at site functionally there will have to be tested. It is seen from the catalogue that this tea leaves are fed by hopper from the one end and carried on to a conveyor through various stages of drying in the inner chambers and the dried tea leaves emerge at the other end Various arrangements for the movement of the tea leaves, drying mechanism required therefore and arrangement for the flow of air, are all built into the single unit in the shell fabricated by confabs. From what appears in the diagram there has to be high degree of integration between various components which go into this unit and the functioning of the different sub assemblies has to be coordinated to a high degree of precision for a unit to function efficiently. From the catalogues produced it is seen certain amount of electric connection have to be laid along the length of the machine and the mechanism for adjustment of the spread of the tea for controlling of flow are all also built in. For ensuring that the drying is done just right without any damage to the leaves, the temperature gradient t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne won't function. In view of the above discussions, we hold that standard models of the FBD machines as shown in the catalogue came into existence at the hands of the appellants before clearance of the same from the factory of the confabs to the customers. No facts have been placed before us as to whether any machines were specially designed with plenum chambers having to be recessed underground. Collector did not examine this aspect. In case there are any such machines which were sold by the appellants, this aspect will have to be examined by the Collector with reference to the facts of these machines. We observe, that it is possible that the electric motor or a blower for operational reason may not be mounted on the shell of the machine. If any such electric motor is fitted separately to the ground or fixed otherwise than on the machines, the FBDs unit will continue to retain the character of the machines like any other machines without the prime mover. Regarding valuation of the machine, is as much as we have held that the standard models of the machine come into existence before clearance of the same, the question of excluding the value of brought out duty period term does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th parts just because the parts of the drier are embedded is also erroneous on the facts and in law. (e) The Collector has mis-interpreted the word 'special machine' in Para 29 of his order while considering the fact of the existence of the plenum chamber if necessary. Once such chambers are held to be an integral part, the drier cannot function in isolation and as such cannot be held to be goods. (f) The observation made by the Collector in Para 24 & 25 of his Order relying on certain judgments is totally out of context and irrelevant. (g) The reliance by the Collector to Circular No. 16/89-CX. 4, dt. 19-4-89 issued by CBEC that the duty is chargeable on parts and components leaving the factory in condition in which they are removed is also irrelevant. Even otherwise, this circular if applicable to this case will not be held as opposed to provisions of Section 3 of the Central Excise and Salt Act 1944 and this cannot be complied. The Circular refers to unassembled and disassembled parts and components of lifts under heading 8428/8431 whereas the present case is of assessment under old Tariff Item 68, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same of its parts became part of the structure of the building." Considering the plea and in view of the above, we do not find any new point taken in the appeal before us, except reliance on the decision of Triveni Engineering & Industries Ltd., [2000 (120) E.L.T. 273 (SC)]. (b) (i) It is evident, from Para Nos. 19, 20, 24 of the Commissioner's Order impugned before us, that not only relevant documentary material has been relied by the Commissioner, but he has arrived at his conclusions regarding the nature of 'plenum chambers', to be recessed underground or they are/could be, also supplied not recessed depending upon the model and the floor level and other requirements of the individual Tea Estates. He has specifically concluded, after examining the statements of senior responsible personnel of the tea estates, that the said chamber need not necessarily be underground but can be kept above the floor level. He has arrived at his conclusions after fact established by this examination of the material and evidence as available with regard to certain FBDs which were dismantled and reinstalled elsewhere. Therefore he has concluded that FBDs cannot be articles 'fixed' to the ground, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore we also conclude that components and/or a FBD came into existence, in the hands of the appellants, before clearance of the same from the factory, as held by the Tribunal vide the Final Order No. 734/1987-D, dated 22-9-1987. (c) In this view of the matter, when the appellants have not been able to substantiate their claim of existence of any 'special models' other than 'standard models' which have been held to be excisable goods and the Commissioner is finding the FBDs to be movable items which infact have been shifted as per the evidence from place to place we have no hesitation in coming to a conclusion that FBDs supplied would be falling under Tariff Item 68 of the wrest while Central Excise Tariff which was applicable at the relevant time. (d) From the impugned Order we find, that the allegations were made and it is an admitted position, that M/s Bedi & Bedi had maintained records and registers of such machines serial No. wise. The registers being 'replacement registers, (Para 9.2)' of the impugned order and FBD register showing the 'parts of components' manufactured by M/s BBP as in Para 9.1. We have no hesitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evy of duty, but various parts and components, used in the manufacture of such erected articles, would be liable to appropriate rate of excise duty at the time of clearance from the respective factory. In the present case, the Tribunal vide their earlier Order 734/1987-D, dated 22-9-1987 [1987 (32) E.L.T. 169 (T)] have already given a ruling on excluding the value of items which were bought out and supplied at site. The same has been done and no serious challenge to the Calculation of the duty quantification as per the direction of the Hon'ble Tribunal has been raised before us. It can therefore be concluded, that what is being charged to duty now by excluding the value of bought out items from the total cost of FBDs recovery in the present Order is the value of FBDs in component form, such components would fall under Tariff Item 68. This would be permissible in terms of the Bombay High Court decision and the Hon'ble Supreme Court's decision in the case of Narne Tulaman relied by the learned Commissioner. We would therefore find no flaw in the present confirmation of demand under Tariff Item 68 on the FBDs .
6. In view of our finding, the appeal is rejected. X X X X Extracts X X X X X X X X Extracts X X X X
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