9911796707
TMI Blog2006 (8) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner/2005 dated 26-12-05 passed by the Joint Commissioner, Central Excise, Kanpur. 2. Facts of the case in brief are that the appellant were engaged in doing job of repairing of old and used part of machinery/dies and in manufacture of new parts/dies for machinery either on job work basis or on their own accounts which are removed on sale basis. These jobs were undertaken by them by using the process of Plasma Coating, Tig Welding, Vacuum Heat Treatment and other allied activities. The manufacturing premises of the appellant No. l was visited by a team of Central Excise Officers on 8-3-02 in order to ascertain whether the activities undertaken by the appellant No. 1 amounts to manufacture. It was ascertained that they have cleare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 139-40 dated 5-5-04 demanding Central Excise duty to the tune of Rs. 8,92,848/- along with interest. 3. The Adjudicating Authority after taking into consideration the facts on the case, show cause notice and defence put forth by the appellants, confirmed the demand of duty along with interest and imposed penalty equivalent to duty under Section 11AC of the Act and Rs. 25,000/- under Rule 25 of Central Excise Rules, 2002 read with 173Q of Central Excise Rules, 1944 on appellant No. 1 and penalty of Rs. 10,000/- on appellant No. 2 vide the impugned Order-in-Original. 4. Feeling aggrieved, the appellants have filed the instant appeals on the grounds that : 1. in respect of job work being done by them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Adjudicating Authority has erred in holding that the activity/process undertaken by them is liable to be held as manufacture under Section 2(f) of Central Excise Act, 1944; 8. penalty imposed are liable to be set aside as the process does not amount to manufacture. A catena of judgment of Apex Court, High Courts and CESTAT have been relied upon. 5. In order to grant natural justice to the appellants, date of personal hearing was fixed on 19-7-06. Shri Amit Awasthi, Advocate appeared on behalf of the appellant and reiterated the grounds of appeal. Fresh submission dated 19-7-06 was also submitted to prove their case. Discussion & Findings 6. I have carefully gone through the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clubbed with value of other goods manufacture exceed the value of clearances exempted under the relevant notification, which is sufficient to prove suppression of value of clearances with intention to evade payment of duty. 9. It is observed that the appellant has failed to prove that as to why the details of the disputed process of job work as well as value of such job work has not been submitted to the department. Further, there is nothing on record to show that full facts were disclosed before the Service Tax wing of the department. Under the circumstances, the claim of appellant No. 1, that matter was in the knowledge of the department is not sustainable and the rulings relied upon by them are distinguished due to the same reason. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the facts and circumstances of instant case. 12. It is observed that law is settled as per the views taken by Apex Court consistently that the moment, there is a transformation into the new commodity commercially known as a distinct and new commodity having its own character, use and name whether it be a result of one process or a series of process, manufacture takes place. The transformation of the goods into new and different articles should be such that it is known as different articles in the commercial world. The same views has expressed by Apex Court in the case of Gramophone Co. of India Ltd. v. CCE [1999 (114) E.L.T. 770 (S.C.)]. The view has been further affirmed by Apex Court in the case of Meltax (I) Pvt. Ltd. v. CCE, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter the conducting the process involved in the instant appeal. 15. On the appellant's plea that their activity is repair, the appellant has placed reliance on Apex Court ruling besides catena of judgments in the case of M/s. East India Transformers & Switch Gears(P) Ltd. [1997(92) E.L.T. 449(S.C.)] in which it has been held that repair of old transformers will not amount to manufacture. It is observed that the facts of the instant case are similar to relied upon case. Accordingly, I take cognizance of the same and hold that the process undertaken is repair. 16. Further, the appellant has pleaded that the appellant is paying Service Tax under the repair & maintenance for their processes. On this issue, I am of the opinion that w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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