TMI Blog2010 (3) TMI 983X X X X Extracts X X X X X X X X Extracts X X X X ..... . AAACAS390EXM002 and avail themselves of the scheme of Cenvat credit embodied in the Cenvat Credit Rules, 2004. 3.2 At times, along with Starter Motors , M/s. AIL also exported spares like Rubber Seal Kit , Brush Spring , and Terminal Kit , Misc. Steel Parts Kit and Hardware Kit , simply referred to as Kit . Rubber Seal Kit is a hotchpotch of Rubber articles such as Sealing Ring, Sealing Bush, Grommet Gasket etc. which are bought-out and cenvatted goods for Auto Ignition Ltd. They are simply packed in a Polythene bag and supplied with Starter Motor as spares, terming them as a Rubber Seal Kit . When Starter Motors are exported, the price for Rubber Seal Kit is charged separately. Brush Spring is a bought-out and cenvatted input for M/s. AIL and it is supplied as such, as a spare, along with Starter Motors and other export products. Its price is however charged separately. Like Rubber Seal Kit , Terminal Kit , Misc. Steel Parts Kit and Hardware Kit are a collection of various bought-out and cenvatted inputs packed in a Polythene bag and supplied as spares. Like others, their prices too are charged separately. 3.3 In the fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parts are supplied separately. What are supplied in the form of Kits are servicing spares. For instance, if a Sealing Ring in the Starter Motor is worn out, it can be replaced from the Kit. Kit is therefore not an integral part of a Starter Motor. The case law, Siddhartha Tubes Ltd. v. Commissioner of Central Excise, Indore, [2006 (193) E.L.T. 3 (S.C.)] relied on by the Commissioner (Appeals) is therefore not relevant to the present case. For, admittedly, in that case, the Pipes were supplied with Sockets fitted on to them. The following is the observation of the Supreme Court in the said case : 6. On facts of this case, the adjudicating authority has found that pipes were cleared from the place of removal (factory gate) with the sockets fitted thereto. Further, the appellant had charged its customers for the said sockets. It is true that in the present case, the sockets were bought by the applicant from the market before they were fitted to the said m.s./g.i. pipes. However, the appellant had cleared the pipes fitted with the sockets and it had charged its customers for the pipes fitted with the sockets and, therefore, the department was right in loading the price of the pipes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question decided was whether Cenvat credit was admissible in respect of Unpacked Detergent Bars which, when packed and sold, attracted no duty of excise. The case is therefore not relevant to our issue and further it related to the period prior to 13-5-2005. 4.6 If the Commissioner (Appeals) s order were to be accepted, it would lead to a dangerous situation paving way for exporters to pay duty on all exempt/non-dutiable products through their Cenvat account and attain rebate in cash thus enabling them to convert the paper credits into hard cash. 5. A Notice under Section 35EE was issued to the respondent M/s. Auto Ignition Ltd., Faridabad who filed their counter replies. Their main arguments were as under : 5.1 The only ground of appeal in the Revision Application filed by Revenue is that Rubber Seal Kit and other Kits are mere assembly of various bought-out CENVATTED inputs and the activity of putting them together does not amount to manufacture and consequently the duty paid by the Respondents on the same cannot be treated as duty of excise and it cannot be rebated. 5.2 Against the above ground, the Appellate Authority has found as under : Though in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claimant before rejecting the claim in full or in part, is a settled law by now. Even the grant of a Personal Hearing is no substitute for a show cause notice. The Revision Application merits to be rejected on this ground alone. In the matter of Metal Forgings v. UOI - 2002 (146) E.L.T. 241 (S.C.), the Supreme Court held, The law requires the show cause notice to be issued under a specific provision of law and not as a correspondence or part of an order. The said notice must also indicate the amount/demanded and call upon the assessee to show cause if he has any objection for such demand. The said notice will have to be served on the assessee within the specified period which is either 6 months or 5 years as the facts demand. Therefore, it will be futile to contend that each and every communication or order could be construed as a show cause notice. For this reason the above argument of Revenue must fail. (Para 10 refers) In view of the foregoing submissions, the Revision Application merits to be rejected. 6. The cases were listed for Personal Hearing on 28-10-2009. Shri Gurukaran Singh Bains, Assistant Commissioner appeared on behalf of the applicant and reiterated the gro ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
