TMI Blog2013 (9) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... v. CCE, Hyderabad [2009 (8) TMI 489 - CESTAT, BANGALORE] - Decided in favor of assessee. - E/1277 and 2489/2011 - A/1348-1349/2012-EX(BR)(PB) - Dated:- 29-11-2012 - Ajit Bharihoke and Shri Rakesh Kumar, JJ. Shri P.K. Ram, Advocate, for the Appellant. Shri Davinder Singh, AR (Jt. CDR), for the Respondent. ORDER The fact leading to this appeal are, in brief, as under :- 1.1 The appellant having their factory at Daruhera, Disttt. Riwari (Haryana), are engaged in the manufacture of Motorcycle and the parts thereof chargeable to Central Excise Duty. They have spare parts division at Gurgaon, where they received the Motorcycle parts in bulk from Daruhera Unit. The parts are cleared by Daruhera Unit to SPD, Gurgaon on payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al dated 23-8-2011 by which the Commissioner holding that in respect of clearances of the Motorcycle parts by the appellant to SPD, Gurgaon for being sold as spare parts, the Provisions of Section 4A are applicable, and hence the duty was required to be paid on MRP minus abatement. The Commissioner accordingly confirmed the duty demand of Rs. 2,59,72,130/- along with interest and imposed penalty of equal amount on the appellant u/s 11AC of the Central Excise Act. The Second show cause notice dated 28-7-2010 was adjudicated by the Commissioner vide order-in-original dated 15-7-2011 by which he confirmed the duty demand of Rs. 1,18,50,423/- along with interest and besides this, imposed penalty of Rs. 30 lakhs on the Appellant under Rule 25 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Products (P) Ltd. v. CCE, reported in 2010 (250) E.L.T. 118, that the same view have taken by the Tribunal in the case of M/s. Sterling Tools Limited v. CCE, Delhi-IV (Stay Order Nos. 677-678/2012-EX(BR), dated 20-4-2012 [2012 (281) E.L.T. 593 (Tribunal)], that even if the department s view is accepted and duty is held as payable by the appellant s unit at Daruhera on the value determined u/s 4A, this duty would be available as Cenvat credit to the spare parts division at Gurgaon, whose operation of re-packing for retail sale amounts to manufacture and duty payment by the Gurgaon unit would become nil, and that thus, this is a Revenue neutral situation. He also pleaded that in respect of Show Cause Notice dated 17-7-2009, there was no ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he duty is required to be paid on the value determined u/s 4A. While the appellant have paid the duty on these goods on 110% of the cost of production in terms of the provisions of Rule 9 read with Rule 8 of the Central Excise Valuation Rules, 2000, the department seeks to recover duty on the value determined under provision of Section 4A i.e. on MRP minus abatement. 6. In terms of the Apex Court s judgment in the case of the Jayanti Food Processing (P) Ltd. v. CCE, Rajasthan, reported in 2007 (215) E.L.T. 327 (S.C.) for application of the provision of Section 4A in respect of any goods, there must be a requirement under SWM Act or the Rules made thereunder to declare the MRP of the goods on their packages. In terms of the provisions of S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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