TMI Blog2009 (10) TMI 748X X X X Extracts X X X X X X X X Extracts X X X X ..... 8706 00 43 under eight digit code. During the course of manufacturing of Dumpers, Chassis fitted with engine classifiable under Chapter sub-heading No. 8706.49 (Ch. Sub heading 8706 00 43 after introduction of eight digit code) are coming into existence and such chassis fitted with engine are being captively consumed for the manufacture of dumpers. 2.1 As per Section 136 of the Finance Act, 2001 and subsequent insertion made w.e.f. 1-3-2003, National Calamity Contingent Duty ( NCCD for short) at the rate of 1% is leviable on Chassis falling under Chapter sub-heading 8706.49 (after introduction of eight digit schedule, the goods covered under Ch. Sub-heading 8706 00 43 attract 1% NCCD). Since the Notification No. 67/95 dated 16-3-1995 as amended exempting duty on the intermediate goods captively consumed in the manufacture of dutiable final products, does not exempt NCCD on the captively consumed goods, it appeared-that BEML should have discharged NCCD on the Chassis fitted with engine for Dumpers manufactured and captively consumed by them. 3. The Intelligence officers carried out the investigation and recovered various statements. On the conclusion of the investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the show cause notice. (g) In view of the aforesaid reasoning, arising out examination of the instant Order-in-Original, it is of the view that the order of the Commissioner is not legal and proper and the same requires to be set aside. 6.1 It is his submission that there is a marketability of the products Chassis, as it comes into existence. It is also his submissions that it is corroborated technically and also through the documents released by BEML. Further it is his submission that the benefit of Exemption for NCCD is not available by the Notification 67/95. It is his submission that the Board s clarification regarding the duties of excise and goods will not cover exemption under Notification No. 67/95. 7. Learned Counsel appearing on behalf of the respondents, draw our attention to the specific finding of the Adjudicating Authority as regards the process of manufacture of Dumpers and the flow chart which was produced before the Adjudicating Authority. He would submit that the Adjudicating Authority has considered all the evidences, which were produced by them at the time of personal hearing and came to the conclusion that they are manufacturers of Dumpers and chas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assembly, Exhaust S/A piping, Battery box, Fuel tank S/A assembly Piping steering system are done. Assembly Stage - 5 : Eng Trans belly gaurds assembly, Body assembly, Rock ejector, Mudguards assembly, Pressure set for hoist steering, Preparation for start, Rear dumper equipment, Assembly trials and quality trials, start and check, Cabin Furnish (Steering column assembly, steering wheel assembly, seat assembly, fan assembly electrical, air systems, interlinking of controls to engine, transmission Hyd. Eng, suspension oil gas charging, diesel filling activity is done. Then it goes for final test, where greasing, decols, intensive testing in two stages are done. Finally after painting the dumper will be handed over to the shipping department. The noticee has strongly disputed the emergence of chassis at stage IV of assembly. The investigation has failed to establish that the steering column was installed at stage IV of the manufacturing process, to qualify the items to be a chassis as defined in terms of the explanation under HSN. It cannot be held that the subject item was a drive away chassis at stage IV of assembly. There is no contrary material to dispute th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old in the market. Market recognizes only finished of-highway Dumper of the above capacity. The Dumper manufactured by BEML are off-highway moving equipment which are built on a frame (no chassis) stage by stage to meet operational requirement as Dumper only. One goes to the market to buy a frame of Dumper of the above capacity, one cannot get it in the market because it is not a commercially known product in the Trade. Therefore, the frame of the Dumper of the above capacity is not having commercial identity known to the market for being bought and sold. The Dumper without body is a semi-finished Dumper having all essential characteristics of Dumper since per se the Dumper without body is not capable of being bought and sold in the market In view of the above findings, and the explanation given in the HN as detailed in Para 88, I hold that no separate excisable goods viz., chassis emerge in the process of manufacture of Dumpers by the notice as alleged by the investigation. 8.2 It can be seen from the above reproduced findings, after the verification and considering the process of manufacture and flow chart, the Adjudicating Authority came to the conclusion that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l filed by the assessee, learned Commissioner (Appeals) endorsed the view taken by the lower authority that their product was dumper chassis rather than dumper. But the appellate authority held NCCD to be a duty of excise for purposes of Notification No. 67/95-C.E. and accordingly granted the benefit of exemption to the assessee. At present, the assessee is aggrieved by the concurrent view taken by the lower authorities to the effect that their product is dumper chassis and not dumper. The Revenue is challenging the grant of exemption under Notification No. 67/95-C.E. to the assessee in respect of NCCD. 2. After hearing both sides and considering the case law cited by them, we find that the question whether NCCD is a duty of excise for purposes of Exemption Notifications issued under Section 5A of the Central Excise Act has been considered and answered in the affirmative in Toyota Kirloskar Motor Pvt. Ltd. v. CCE, Bangalore [2007 (217) E.L.T. 403 (Tribunal) = 2001 (82) RLT 828 (CESTAT - Ban.)], wherein the benefit of Notification No. 108/95-C.E. dated 28-8-1995 was held to be admissible to NCCD leviable under Section 136 of the Finance Act, 2001. We agree with that decision, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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