New User   Login      
Tax Management India .com TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2015 (4) TMI 282 - CESTAT CHENNAI

2015 (4) TMI 282 - CESTAT CHENNAI - TMI - Waiver of pre deposit - Marketibility of goods - sale of spare part of automobile procured locally and imported after packing or unpacking - MRP based levy u/s 4A - Held that:- goods shall be brought under the purview of section 2(f)(iii) of Central Excise Act, 1944. - Appellant failed to show the percentage of sale without labeling and repacking and otherwise. Therefore, prima facie it enables us to construe that the entire clearing was made packing, re .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

is deniable. There was nothing incredibility in the depositions brought out by the appellant. Statements recorded under section 14 of Central Excise Act, 1944 is in the course of Judicial proceeding. That cannot be brushed aside. Therefore, we are prima facie of the opinion that Revenue has a prima facie case for directing predeposit due to shifting of the unit - Decided against assessee. - E/S/65/2011 in E/105/2011 - Misc. Order No. 40470 / 2015 - Dated:- 12-3-2015 - Shri D. N. Panda And Shri .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

taken to seek no objection of previous counsel. On 9.3.2015 when the matter came again adjournment was sought. Today, matter came for hearing. 3. Learned counsel argues that the spare part division of M/s. Tatra Vectra Motors Limited was transferred to the present appellant which is Vectra Advanced Engineering Pvt. Ltd. Appellant although acquired the spare part division of Tatra Vectra Motors Ltd. it was not a manufacturer of the goods which were cleared by it packing and labeling the same. Som .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

old unpacked does not bring any difference to their marketability. Mere packing of the goods does not make the goods marketable. Therefore, the element of section 2(f)(iii) of Central Excise Act, 1944 not being satisfied appellant is not liable to duty. He relied on the following decisions to submit that the activity of the appellant cannot be called as manufacturing since the packing or unpacking is irrelevant for marketing, as goods as such are marketable. (1) Lakme Lever Vs. CCE 2001 (127) EL .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ports the adjudication. It is submitted that appellant closed down its business for which it was not at all practicable to reach to the appellant for reducing the litigation. Therefore, the authority had no other go but to pass the order according to the materials available on the record. There was no necessity of cross-examining own officers of the appellant. Appellant did not make specific prayer for cross-examination in denovo adjudication. 6. Heard both sides on stay application and perused .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

was adjacent to the factory premises of the appellant and that called for registration. But appellant did not seek registration of this acquired unit as has been recorded by learned adjudicating authority in para 2(b). of the adjudication order at page 3 (running page number 169 of appeal folder). 8.2 There is nothing on the record as to whether this transfer was recognized by Excise Authority seeking registration by appellant for this Spare Part Division before the excise authority. Learned Ad .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

use notice filed by appellant he took up the two show-cause notices dated 10.4.2008 and 3.12.2008 along with show-cause notice dated 6.10.2009 for analogous hearing and common disposal. He examined the affidavit of the Deputy Manager (Finance) Shri P. Ganesan and noticed that the goods were cleared by packing and labeling the same. He has not at all passed the order without application of his mind. He went on examining the submissions, materials on record as well as the law applicable to the cas .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

f Shri Ganesan, he also examined his oral evidence dated 30.112007 and he noticed that whenever there was demand for spares from customers those were subjected to labeling and packing and cleared. He noticed that entire packing was branded as VECTRA . This enabled him to reach to a conclusion that not only the goods were simply packed and repacked but were branded. He examined the relevance of section 2(f)(iii) of Central Excise Act, 1944 to the case in hand. He has found that the requirement of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ties) Act. Therefore, he came to the conclusion that the goods attracted section 4A of Central Excise Act, 1944 for dutiability. 8.5 Apart from the aforesaid observations, the authority also found that the appellant did not make any prayer for cross-examination specifically and if so, for what reason. Cross-examination is not mechanically allowed under law. The strictness of the evidence is essence of criminal jurisprudence but preponderance of probability is guiding factor in fiscal proceedings .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he goods were subject to the provisions of Weights and Measures Act and liable to be dutiable under section 4A of Central Excise Act, 1944. 9. We have given full length of hearing of the matter to both sides. Prima facie, we are not satisfied as to the reason why the goods shall not be brought under the purview of section 2(f)(iii) of Central Excise Act, 1944. Appellant failed to show the percentage of sale without labeling and repacking and otherwise. Therefore, prima facie it enables us to con .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

and legislature was conscious about the marketability of the packed goods while incorporating sub-clause (iii) to section 2(f) of Central Excise Act, 1944. 11. We fail to understand why cross-examination is necessary in the present case when the appellant did not justify before the authority below as to necessity thereof. Since cross-examination is not a right to cause prejudice to the other side following dilatory tactics, that is deniable. There was nothing incredibility in the depositions br .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Benara Valves Ltd. Vs. CCE 2006 (204) ELT 513 (SC) in order to protect interest of Revenue. 12. Appellant pleaded financial hardship and prayed for a reasonable consideration of the matter at the interim stage. The facts and circumstances of the case were examined and we are of the opinion that the order we are proposing today shall not cause undue hardship to the appellant. We are conscious that Hon ble Supreme Court has explained in plethora of judgments that it is not hardship is to be exami .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s suffered. We are also conscious of the anxiety of the apex court in para 7 of the judgment in Assistant Collector Vs. Dunlop (India) Ltd. 1985 (19) ELT 22 (SC) which reads as under:- 7. We have come across cases where the collection of? public revenue has been seriously jeopardised and budgets of Governments, and Local Authorities affirmatively prejudiced to the point of precariousness consequent upon interim orders made by courts. In fact, instances have come to our knowledge where Government .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

denied permits or their permits had been cancelled or suspended by Transport Authorities. We have come across cases where liquor shops are being run under interim orders of court. We have come across cases where the collection of monthly rentals payable by Excise Contractors has been stayed with the result that at the end of the year the contractor has paid nothing but made his profits from the shop and walked out. We have come across cases where dealers in food grains and essential commodities .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he interests of justice. Where gross violations of the law and injustices are perpetrated or are about to be perpetrated, it is the bounden duty of the Court to intervene and give appropriate interim relief. In cases where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizen s faith in the impartiality of public administration, a Court may well be justified in granting interim relief against public authority. But since the law presumes that pu .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version