9911796707
TMI Blog2006 (6) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... o.1/2001 dated 6.6.2001 held that the Respondents had followed the procedure under Rule 233B of Central Excise Rules, 1944. Against the order of the Dy. Commissioner, Revenue filed a file to the Commissioner (A) and the commissioner (A) passed the impugned Order-in-Appeal No. 57/2003 dated 24.11.2O03. In the impugned order, the Commissioner has held the following. (i) The appellants are required to discharge the duty liability on the impugned goods at appropriate rate under Heading 7311.00 of CETA. Further value of gas cylinders and other components and materials would be added to arrive at the value of the impugned goods. (ii) Since the letter of protest given by the Respondents had not been acknowledged/received by the proper officer i.e. the Asst. Commissioner of Central Excise, Eluru, the requirement of Rule 233B of Central Excise Rules is not fulfilled by the Respondents and the claim for refund is time, barred. (iii) The order of the Dy. Commissioner sanctioning refund amounting to Rs. 1,24,930/- is not legal and proper. The appellants strongly challenged the above finding and hence, they have come before this Tribunal for relief. 3. S/Shri K.S Ravi Shanker and N. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r at Para 2, line of 5of his order. 12. Appellant's Refund claim CFK/CE/2000 dt. 11.1.2000 addressed to Deputy Commissioner Informed to the Deputy Commissioner as the duty was paid under protest 13. Deputy Commissioner order in original No. 01/2001 dt. 6.6.2001 (Annexure 1 - Page 23-25). Deputy Commissioner himself admitted under protest under Rule 233B and allowed refund claim. 5.The learned JCDR reiterated the findings of the impugned order. 6. We have gone through the records of the case carefully. When the Order-in-Original No. 1/2001 dated 6.6.2001 was reviewed by the Commissioner, the following grounds were mentioned. The order passed by the Dy. Commissioner of Central Excise, Eluru Division, is not legal and proper for the following reasons: (a) The Rule 233B warrants to assessees to file their letter of protest with the proper officer who is nothing by the Jurisdictional Assistant Commissioner in terms of the delegation of powers and it is not further delegated to the Range Superintendent. (b) The Hon'ble High Court of Bombay in the case of M/s. Roche Products Ltd. has also held that the letter intimating the Assistant Commmissioner regarding payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fall under 8707.00 and entitled to duty exemption under Notification No. 5/98 irrespective of the classification because according to the provision of the said Notification Sl .No. 268 all the goods manufactured in the factory and used within the same factory for building a body or fabrication or mounting or fitting of a structure or equipment on a chassis of a motor vehicle is entitled to duty exemption. Hence, he dropped the proceedings initiated vide Show Cause Notice dated 24.6.99. (ii) In adjudication Order No. 37/99, the Dy. Commissioner has held that the value of the cylinder is excludable from the assessable value of the manifold because both have distinct names, tariff, heading and usage. Therefore, he dropped the proceedings initiated in Show Cause Notice dated 24.6.99. (iii) Revenue was aggrieved over the above decision of the Commissioner of Central Excise, Eluru. Hence, appeals were filed before the Commissioner (A). (IV) The Commissioner (A) took up both the appeals and passed the impugned orders. In the impugned orders, he allowed the departmental appeal holding that Manifolds will be appropriately classifiable under Heading 7311.00 of CETA. Further exemption und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quipped for carriage by one or more modes of transport not only by road but also by rail, water or air. They are equipped with nipples, nozzles, pins, etc., to facilitate to fill up and store the gases under vacuum pressure. They are suitable for transport of goods without any further repacking intended to be used repeatedly as durables. However, manifold is different item which by itself cannot fill up or carry compressed gases as mentioned under S.H. No. 7311.00. This is only an iron structure specially designed to accommodate the above said cylinders which are classified under 7311.00. Just because cylinders are fitted in the manifold, it cannot be classified under 7311.00. (v) The impugned goods are secured to the chassis of a motor vehicle and obviously these are covered under chapter 87 which deals with exclusively vehicles/bodies/structures/cabs etc., for transportation of humans, things, oil, gases. In other words, manifolds fitted on a chassis of a vehicle are identifiable as being suitable to use solely or principally with the motor vehicles of S.H. No, 87.04 i.e. lorry. Therefore, manifolds are correctly classified under S.H. No. 87.07. (vi) The appellants rely on Mini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arefully. The issues involves in these appeals are as follows: (i) Whether the manifolds manufactured by the appellants would fall under 8707.00 or 7311.00. (ii) Whether the said manifolds are entitled for the benefit of exemption Notification No. 5/98. (iii) Whether the value of the gas cylinders and other components/ raw materials is includable in the assessable value of the manifolds. 10.1 It is seen that manifolds are structures manufactured from iron, brass, etc. First columns will be cut into required lengths. Individual header pipes and pigtails are made from brass, copper by silver brazing rods for which required components are made from the lathe machines viz., bull noses, bull nose nuts, brass blocks and pressure gauge adopters, etc. With fixation of tube components, a stand in the structure called manifold will be assembled and welded to suitably accommodate about 134 cylinders at a time, on completion of manufacture of the finished products, loose cylinders which were purchased from outside will be fixed with bolts and nuts. The cylinders are easily detachable whenever they are required to be removed, The cylinders are duty paid. The manifolds fabricated are mounted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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