TMI Blog1984 (2) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... ry installed in the Industrial Unit does not exceed ₹ 10,00, 000. There is no dispute that the appellants fulfilled this condition. Under the notification aforesaid, first clearance of goods upto an aggregate value not exceeding ₹ 15 lakhs are exempt from whole of duty of excise and next 15 lakhs are chargeable to 4% ad valorem duty under para 2 nothing contained in the notification shall apply to a manufacturer if the total value of the said goods cleared for home consumption by him or on his behalf from one or more a factory in the preceding financial year had exceeded ₹ 30 lakhs. Notification No. 105/80-C.E., dated 19-6-1980 is the successor notification to this notification and has in para 3 similar condition under which the notification is not to apply to a manufacturer if the total value of the goods cleared for home consumption by him or on his behalf from one or more factories the preceding financial year exceeded ₹ 30 lakhs. Appellants are manufacturers of Fare Meters for Taxis and Auto-Rickshaws falling under Tariff Item 68 of the C.E.T. The statutory rate of duty at the material time was 8% ad valorem. Appellants clearances for the previous finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rem duty would work to ₹ 17,256/-. He, therefore, set aside, the Asstt. Collector s order and ordered recovery of the amount from the appellants. He, however, did not impose any penalty on the appellants. 4. Aggrieved with this order, the appellants have filed the present appeal. At the hearing of the appeal Shri A. Hidayatullah, learned Counsel for the appellants submitted that the Fare Meters were not meant for home consumption nor were they capable of being utilised for home consumption because their tariff was based on the Ceylonese rates and markings were in Ceylonese currency. They were fitted with double counters which are not used in auto-rickshaws in India, gear box arrangement was different to that for meters made for home consumption, cartons were all marked MSHC and Colombo which are export cartons. M/s Bajaj A.P.I, were given sales tax exemption for export of goods by Form 14 issued under Section 12 of the Bombay Sales Tax Act, 1959. The type and specification of the meters was as given by the Ceylonese Importers and they were not manufactured for home consumption. He further submitted that meters were in fact exported and were not fitted to the Auto-ric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported out of India cannot be considered as goods cleared for home consumption and as a consequence the value of such goods cannot be taken into consideration for computation of the value of clearance under the Notification No. 105/80-C.E. A comparative statement showing the points considered by the Tribunal in International Minelmech s case and between the present case was filed before the Bench. The points of comparison are set out in tabulated form below :- Factors showing goods were for export and actually exported in International Minelmech. Factors showing goods were for export and actually exported in Appellants case. 1. Ballarpur certified goods were exported 1. Bajaj and API certified goods were exported. 2. Order placed by Ballarpur on I.M. showed goods were for specific purpose of export. 2. Purchase order by Bajaj on Appellants shows goods were to be manufactured according to Srilanka party s requirements (double counters, Rs-cents and Srilanka Tariff) 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... machines etc. by M/s. Ballarpur Industries to the goods supplied by the manufacturers; whereas, in the present appeals the fare meters supplied by the appellants to M/s. Bajaj and API were cleared by them as components of autorickshaws in C.K.D. conditions and C.K.D. pack. He submitted that what was exported by M/s. Bajaj and API were not fare meters but auto-rickshaws fitted with fare meters as components. In this view of the matter there could be no comparison between precedent and the present appeal. 9. He submitted that A.R. 4 Forms presented by Bajaj and API describe the goods for export as Bajaj Auto-rickshaws with spares tyres and tubes. The value of the auto-rickshaws indicated by Bajaj in AR 4 Form was inclusive of value of accessories including the fare meters. The letter of credit and shipping bills of API describe the goods meant for export as auto-rickshaws inter-alia fitted with fare meters. The value indicated in the shipping bills and other documents was for the entire unit and not separately for the accessories which were not sent or fitted along with vehicles. He submitted that just because the components were indicated separately in the packing list it could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Bills, as admittedly, the fare meters were not excise duty paid, no drawback could be given under Rule 3(1) proviso 1 of the Drawback Rules. (c) Under Schedule II, item 50 no drawback was admissible as fare meters commercially understood are not a part or accessory of an auto-rickshaw. (ii) The fare meters are not a part or accessory because: (a) Bajaj/API did not regard them as such as they issued Form 14 certificates for Sales Tax purposes i.e. a declaration that the fare meters were not for use in the manufacture of the auto-rickshaw (otherwise Form 15 would have been issued). (b) Auto-rickshaws are complete, sold and used without tare meters. (c) A part has to be something without which the goods in question are not complete and not usable and this test is not satisfied, in the case of fare meters. (d) An accessory is something which adds to the convenience or effectiveness which test is not satisfied in the case of fare meters. (iii) In any event, the issue cannot be raised at this stage as the Appellate Tribunal is bound by the scope of the review show cause notice where the only issue is whether the fare meters were fitted to the auto-ric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ickshaws. They cannot also be called accessories. We do not find on record copies of the order placed by overseas buyers on Bajaj and API to know whether the overseas buyers wanted auto-rickshaws taxis or auto-rickshaws simplicitor. This documents would not be in the possession of the appellants. The Department had by issue of Show Cause Notice set aside the order in appellants favour passed by the A.C., Central Excise. One would expect the Department to place a copy of this order before the Bench. That has not been done. 14. As to 5 fare meters, which have directly been exported by the appellants, though proper documents for the purpose were not filed by the appellants, the Department does not dispute that the appellants should get the benefit in respect of these five fare meters. These would therefore, have to be excluded while computing the value of clearances made by the appellants. About 23 meters supplied by the appellants to API, though API has given a certificate that meters were packed in separate boxes and were not fitted on auto-rickshaws, we find that Bill of Lading in respect of API placed on file shows that auto-rickshaws were fitted with fare meters. From this, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 the same would have been applicable to the appellants if they had not claimed benefit of exemption notification and were otherwise liable to payment of duty. There is nothing to show that the goods cleared free of duty under an exemption notification cannot be exported. From the facts of the case it does not appear that appellants could have obtained excise documents like AR 4 or AR 4A to cover the export, since no duty liability whether for refund or for failure to export could arise, the facts of the present case make it clear beyond doubt that 505 fare meters had actually been exported out of India. It is now idle to conjecture whether they were cleared for home consumption and then exported or cleared for export ab with. The facts of the present case are substantially similar to International Minelmech P. Ltd s case and in some respects it is better for the appellants. We would, therefore, hold that 505 fare meters are entitled to be treated as exported and their value deductible in arriving at the value of the clearance for home consumption in the relevant financial year. We therefore, allow the appeal in respect of 505 fare meters with consequential relief to the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X
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