9911796707
TMI Blog2006 (8) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... ons claiming exemption under notification 6/2000 dated 1-3-2000 and 22/2000 dated 6-3-2000 for such parts and components. They cleared the goods on invoices, giving details of the product cleared. 1.2 The officer on 9-8-2000 visited the factory premises, of the assessee, found a consignment of "Split Air Conditioner" comprising of out door and indoor units described on invoice No. 1162 dated 9-8-2000 as "Parts of Air Conditioners". It was classified by the assesses officers that the item did not include. "Copper Tube Piping" and 'insulation' and that was the reason to declare them as parts of Air Conditioner. 1.3 The officers conducted enquiries and a Show Cause Notice dated 29-8-2001 was issued proposing recovery of duty for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al time and that the Board Circular dated 25-9-2002 merely clarifies the position under the existing law with a view to ensuring uniformity in assessment. Therefore, the Commissioner is not justified in not applying the said circular to the present case particularly when he has been directed to considering the same by the Tribunal while remanding the case for fresh decision." "2. In view of our finding as above we set aside the impugned order and remand the matter to the adjudicating Commissioner to specifically consider the impugned goods in the light of the aforesaid Board's Circular dated 25-9-2002. To facilitate readjudication of the case the applicants shall submit a detailed chart showing. Which of the essential elements are containe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the parts of Air conditioner. The scrutiny/investigations revealed that the product at (b) to (f) mentioned above were not the mere parts but the complete Air conditioning machines without having minor parts like copper tube and charging gas". This would indicate that all clearances were without copper tube i.e. capillary lines. The Commissioner calls the entities cleared as Air-Conditioners, while Board vide Circular No. 666/57/2002/CX., dated 25-9-2002 specifically held such tubes, to be one of 5 essential components without which the clearance cannot be considered to be of an Air Conditioners. The order of remand was a direction to apply this circular of Board. 2.2 This Board's circular dated 25-9-2002, prescribes :- "The CEGAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder unsustainable and therefore to be set aside. 2.3 It is now for the third time that the Commissioner has refused to follow the Boards circular. On the first occasion, Commissioner had vide its order No. 16/DEM/2002 dated 24-9-2002 upheld the demands without considering the Board Circular. The said order was set aside by the Tribunal vide Order No. C-1/404-409/WZB/03 by remanding the matter, back to the adjudicating authority to decide the matter in light of Board Circular No. 666/57/2002/CX., dated 25-9-2002. However, by its second order No. 15/DEM/Vapi/2003 dated 26-11-03, once again the demand is confirmed on the ground that the Board Circular was not applicable since the demand related the period March 2000 to December 2001 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t when they may be or could become something else, on a later date. The finding, is to be held to be bad in law without any material and is to be set aside. 2.5 The Commissioner in his order appears to be confused. The three notices are for different periods and the factual position was different. The Commissioner appears to be relying on the factual position in notice dated 29-8-2001 when the period worked in the other two notices is different the assessee was manufacturing and clearing Air Conditioners and paying duty thereon. They were also manufacturing Parts and Components (termed as Kits by them) except for the capillary tubing. The statements and documents relied upon of the Commissioner relate to pre 9-8-2000 clearances. After ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruction by themselves cannot be considered to be a complete Air Conditioner or have essential character of Air Conditioner to classify them as other than parts. No duty demands can be worked out on such.
2.7 When no duty demands could be raised and the orders on demands of duty are not upheld, there is no case or cause for penalty as arrived to be upheld.
2.8 Consequently duty demands as made out and penalty amount on to be set aside and appeals allowed.
2.9 Since duty demands are not being upheld, we do not arrive at a finding on other plea of cum duty price, suppression etc made by the appellants.
3.1 In view of the findings arrived, the order is set aside and appeals allowed.
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