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Commissioner Customs & Central Excise Meerut-II Versus M/s. Honda Siel Power Products Ltd.

Manufacture - whether the bought out Pumps and own manufactured I.C. Engine put in single carton by the assessee would amount to manufacture of Power Driven Pumps - Admissibility of exemption claim - Held that:- Clause (b) of Section 35 L provides that an appeal shall lie to the Supreme court from any order passed by the Tribunal relating among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessmen .....

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R> Finding recorded by the Tribunal in the impugned order that by putting together a Pump and Engine and a platform the assessee had produced a new item viz. "P.D. Pump" is wholly baseless and also without consideration to the findings of fact based on relevant material and evidences recorded by the Adjudicating Authority. Merely putting together one bought out item with own manufactured item in a carton does not involve any process amounting to manufacture under Section 2(f) of the Act. - acti .....

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g the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer.

Mere addition in the value of a product would not amount to manufacture. To bring the process within the definition of manufacture, it must be shown that due to the process original identity of the product undergoes transformation and it becomes a distinct and new product. - impugned final order of the Tribunal arising from the or .....

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Sri Nishant Misra and Sri Anupam Misra, learned counsel for the respondent. Preliminary objection: 2. Learned counsel for the respondent has raised the preliminary objection on maintainability of the appeal as under: (a) The impugned order of the Tribunal is a common order passed in two appeals and as such the present single appeal against the orders passed in two appeals, is not maintainable. (b) The controversy involved in the present appeal is also with respect to admissibility of exemption a .....

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preliminary objection, he submits that the issue involved in the present appeal is as to whether the bought out Pumps and own manufactured I.C. Engine put in single carton by the assessee would amount to manufacture of Power Driven Pumps (hereinafter referred to as the "PD Pumps"). Thus, the basic question involved is as to whether the aforesaid activity amounts to manufacture under Section 2(f) of the Act. If this question is answered in affirmative only then the question of exemption .....

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he PD Pumps and the prime mover have been developed and manufactured by the assessee themselves. Besides this they have also been removing I.C. Engine without payment of duty alongwith bought out PD pump by simply placing both the items in a single carton and clearing the same as PD pump set in terms that bought out PD Pumps have been developed and manufactured by M/s Mahendra Engineering Works, Coimbatore (for short "M/s MEW"). 5. A show cause notice was issued to the assessee on the .....

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rious paragraphs of the order-in-original and the impugned order of the Tribunal and submits that under the facts and circumstances of the case the benefit of the Notification No.6/2002-CE dated 1.3.2002 was not available to the assessee in respect of I.C. Engine cleared with bought out pump and, therefore, the Adjudicating Authority rightly held that the assessee is liable to discharge duty liability on the I.C. Engine. Submission of the Respondent Assessee 6. Refuting to the submissions of cou .....

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ubstantial question of law. An order in original no.01 dated 19.2.2004 was passed by the Commissioner of Central Excise Meerut - II for the period April 02 to February 03 creating a demand of ₹ 3,28,507/- with respect to I.C. Engine cleared with bought out Pumps as pump sets and another order in original no.9-11 dated 31.1.2006 for subsequent period creating the duty demand of 1,78,08,035/- under Section 11 A of the Act adjudicating the show cause notices dated 9.6.2004 and 29.6.2005 were .....

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actured I.C. Engine and purchased Pumps from M/s MEW and placed the same inside single carton and marketed it as pump sets in unassembled condition. Thus, I.C. Engines were used in factory of production of the assessee and were consigned as a single commodity which amounts to manufacture under Section 2(f) of the Act. The assembly of the said article is required at the customer's end. In terms of Rule 2(a) of the Interpretative Rules to the Central Excise Tariff Act, the clearance is of full .....

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l Chapter Note no.3 and 6 of Section XVI of the Central Excise Tariff Act, the Circular No.2 to 4/58/96-CX dated 26.6.1996 issued by the Central Board of Excise and Customs New Delhi and the law laid down in the cases of Royal Bank of Scotland N.V. Vs. Commissioner of Customs and Central Excise (2014) 35 STR 68 (Allahabad), Commissioner of S.T.,Bangalore Vs. Scoff Wilson Kirkpatrick (I) Pvt. Ltd. 2011(23) STR 321 (Karnataka), Commissioner of Service Tax Vs. Ernst & Young Pvt. Ltd 2014(34), S .....

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Ltd. Vs. Deputy Commissioner 1991 (55) ELT 437 (S.C.). Discussion and Findings 8. We have, carefully, considered the submissions of learned counsel for the parties and perused the record. 9. With the consent of learned counsel for the parties the following questions of law have been formulated and they have been heard on it :- i. Whether under the facts and circumstances of the case, the High Court has jurisdiction to entertain the present appeal under Section 35 G of the Act? ii. Whether under .....

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passed in appeal by the Appellate Tribunal on or after 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. Section 35 L provides that an appeal shall lie to the Supreme Court from any judgment of the High Court delivered in an appeal under Section 35 G .....

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l under Section 35 G of the Act is limited to an order of the Tribunal relating, among other things to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment. Thus Section 35 G of the Act does not exclude the power of the High Court to entertain an appeal against an order passed by the Appellate Tribunal on the question of manufacture. The basic question involved in the present appeal as also contested by the part .....

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that two orders in original were passed by the Commissioner of Central Excise against which the respondent assessee filed separate appeals before the Tribunal being appeal no. E/2619/04 and Appeal no.E/1786/06. 12. Thus two appeals were decided by the Tribunal by final order No.831/06 and 832/06 - EX dated 20.10.2006 which is a common order deciding both the appeals. Section 35 G provides that an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal. The .....

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ed as an appeal only against one final order of the Tribunal. Considering the facts and circumstances of the case the present appeal is treated to be an appeal filed against one Final Order. Consequently, the present appeal is entertained against the impugned final order of the Tribunal arising from order in Original No.9-11 dated 31.1.2006. Question No.(iii) 13. Before we proceed to examine the legal issue, it would be expedient to notice undisputed facts which emerge from the order in original .....

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gine, as such, for sale in the open market on payment of duty. They have also been clearing I.C. Engine for captive consumption without payment of duty for use in the manufacture of PD Pumps where both the Pumps and the I.C. Engine have been developed and manufactured by the assessee. Apart from this the assessee has also been removing I.C. Engine without payment of duty alongwith bought out P.D. Pump by placing both the items in a single carton and clearing the same as P.D. Pump set [model no. .....

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gnee's end and does not require any further process by the unit. It was also alleged in the show cause notice that the activity of placing bough out Pump by the assessee with their own manufactured I.C. Engine is not ''manufacture' as defined under Section 2(f) of the Act. The assessee submitted the reply. The Adjudicating Authority framed the following question for determination: "Whether the mere placing of a bought out Pump with their own manufactured I.C. Engine in a sin .....

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by them. This Honda pump is a compact unit. (b) The other pump set is a combination of bought out Mahendra pump with Honda I.C. Engine packed in a single carton. The printed sheet to be affixed on such carton carried the description of Honda I.C. Engine as well as Mahindra bought out pump" 17. After considering the evidences on record the Adjudicating Authority recorded the following findings of fact in the order in original dated 31.1.2006:- "The office orders of the Marketing Accoun .....

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" pumps. These are supplied with the Honda Engine Models GK-100, GK-200 & GK-300 in a single carton by M/s HSPPL for use in the manufacture of Pump Sets at dealer/ customer's end. The agreement between M/s MEW and M/s HSPPL clearly mentions that Mahendra' shall be embossed on the casing of Pump set and a name plate showing "Mahendra" shall also be affixed on the Pump itself. M/s HSPPL were also supplying two buyers manual with such combination of Pump and I.C. Engine, .....

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nce it can be said that no manufacturing was taking place in respect of Mahendra pump. And since there is no manufacturing involved, the benefit of condition No.58(ii)(b) of the Notfn. No.6/2002-CE dated 1.3.2002 is not available to M/s HSPPL for these products. Regarding the Board's circular dated 26.6.96, I find the same not being applicable as there is no dispute in classification of P.D. Pump sets. The present issue revolves around whether the activity undertaking by M/s HSPPL in relatio .....

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Further the ratio of the judgment of Fedders Lloyd Corp. Ltd. V/s CCE, Mumbai-II is not applicable because the appellant were affixing their own brand before clearing the split Air Conditioner to the site of the customer. In the instant case the identity & the brand of Mahendra Pumps manufactured by M/s MEW is retained. Even on the packing of the combination of bought out Pumps and I.C. Engine to be cleared, the description of both Honda Engine as well as Mahendra pump is given. The printed .....

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e instant case because the subject issue relates to inclusion of value of Lead Acid Batteries (assembled out of cells by the appellant in his factory itself) in the value of UPS. In view of aforesaid it is apparent that no manufacturing process took place in respect of the PD Pumps sets with Mahendra Pumps in the factory of M/s HSPPL. As such the I.C. Engines were not used within the factory of production for the manufacture of these models of the PD Pumps sets. Therefore, I hold that clearing o .....

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s recorded by the Adjudicating Authority. It merely referred to the circular of the CBEC and observed in paragraphs 5,6,7 and 8 as under: 5. We have perused the record and heard both sides at length. Much case law has also been cited by both sides on the issue of manufacture. 6. As already noticed, the appellant was discharging duty at the time of clearance of the PD pump packages after classifying them under 8413. The appellant described the item under sale as "Water Pump-WSK2020" etc .....

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ts for handling water- Regarding. I am directed to say that the Confederation of Indian Industry has pointed out about divergence in practice of classification of Power Driven Pump Sets for handling water. A P.D. Pump Set may be a pump having an inbuilt prime move designed and built as a complete unit, called a monoblock pump-set, or a pump and a prime mover being two separable units whether coupled or not put/intended to be put on a common platform. It has been represented that it is classified .....

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ts parts P.D. Pumps. Following the same analogy, the prime mover, i.e., I.C. Engine may be treated as an integral part of P.D. Pumps. The board takes note of Note 3 of Section XVI of Central Excise Tariff which states that compromise machines consisting of two or more machines fitted together to from a whole and other machines adapted for the purpose of performing two or more complementary or alternative functions are to be classified as, if consisting only of that component or as being that mac .....

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ndustries stand on the item. It is clear therefrom that the industry recognized PD pump sets as two varieties, one monoblock and the other "having two separable units whether coupled or not put/intended to be put on a common platform". Thus, the industry recognition of power driven pump is as a pump put together or intended to be put together on a common platform. In the appellant's case also, the carton contained a pump and an engine along with the platform on which the engine and .....

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actured item get treated as the fully manufactured item for the purpose of levy. 8. From the above noted factual situation, we are clear that the packets removed by the appellants were, in fact, power driven pump sets and that by putting together an appropriate pump, an engine and platform the appellant has produced a new item viz. power driven pump and the finding to the contrary is not sustainable. It is well settled that manufacture involves the bringing into existence of a new item with a di .....

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e taken a view that in the facts of the case and the industry trade and taxation practice, there could be no dispute that power driven pump is a manufactured item. The Commissioner was, therefore, in error in holding that the clarification of the board was not relevant on the issue of manufacture. This is to presume that classification circulars are an academic exercise in a theoretical framework and has no application in the real world of tax administration." 19. The tribunal has also obse .....

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eproduced in paragraph 18 as above. 21. In paragraph 8 of the impugned order the Tribunal also completely ignored the fact that the respondent assessee is manufacturing and clearing I.C. Engine being used for vibrator, concrete mixer, pumping, power generation etc. and have been clearing I.C. Engines, as such, for sale in the open market on payment of duty and also clearing for the captive consumption without payment of duty for use in the manufacture of Honda make P.D. pump of certain variants .....

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. These manuals separately provided the description and the functioning of I.C. Engine. The Mahindra Pump manufactured by M/s. MEW has been retained separately even on the printed sheet to be pasted on the packing box which bear the description "G.K. 200" with Mahindra WMK 2520 water pump". These facts clearly indicate that the I.C. Engines were not used by assessee within the factory of production for the manufacture of the P.D. Pump sets in question. 22. In view of the above dis .....

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cture under Section 2(f) of the Act. 23. In the case of Omar Salay Mohamed Sait Vs. Commissioner Income Tax, AIR 1959 SC 1238 (para 42), Hon'ble Supreme Court laid down the law as under: "We are aware that the Income-tax Appellate Tribunal is a fact finding Tribunal and if it arrives at its own conclusions of fact after due consideration of the evidence before it this court will not interfere. It is necessary, however, that every fact for and against the assessee must have been consider .....

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the assessee should be given an opportunity of doing so. On no account whatever should the Tribunal base its findings on suspicions, conjectures or surmises nor should it act on no evidence at all or on improper rejection of material and relevant evidence or partly on evidence and partly on suspicions, conjectures or surmises and if it does anything of the sort, its findings, even though on questions of fact, will be liable to be set aside by this court." 24. In the case of Udhav Das Kewal .....

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the case of Commissioner of Central Excise Vs. Sri Commercial Agencies (2008) 232 ELT 577 SC (para 4), Hon'ble Supreme Court held that order of the Tribunal placing reliance on a judgment without analysing facts is not proper and consequently the matter was remanded. 26. In the case of Commissioner of Central Excise Commissioner Batore Vs. Matri plex pump private Ltd 2015(322) ELT 6 SC (para 3 and 4), Hon'ble Supreme Court held as under: "In that view of the matter, we are of the c .....

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sidered and reasoned decision shall be rendered by the Tribunal." 27. In view of the above discussion, we are of the view that the impugned order of the Tribunal can not be sustained and, consequently, deserve to be set aside and the case deserve to be remitted back to the Tribunal for de novo consideration of the facts of the case, the findings recorded by the Adjudicating Authority in the order in original and the evidences referred therein after which a reasoned decision shall be rendere .....

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in relation to the goods specified in the Third Schedule, involves packing or repacking of such goods in a unit container or labelling or re-labelling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer, and the word "manufacturer" shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of exci .....

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ing to manufacture, or any process which, in relation to the goods satisfied in the third schedule involves packing or repacking of such goods in a unit container or lebelling or relebelling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer. 30. Mere addition in the value of a product would not amount to manufacture. To bring the process within the definition of manufac .....

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its original identity also under goes transformation and it becomes a distinctive and new product." 32. In the case of XI Telecom Ltd. Vs. Superintendent of Central Excise Hyderabad (1999) 105 ELT 263 (AP) (para 11,12,13), the Andhra Pradesh High Court considered the law settled by Hon'ble Supreme Court on the question of 'manufacture' in the cases of Union of India Vs. Delhi Cloth General Mills AIR 1963 SC 791, South Bihar Sugar Mills Ltd. Vs. Union of India, AIR 1968 SC 922, .....

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uence the change may be. While making the above observation relied on a passage quoted in Permanent Edition of Words and Phrases, Vol.26 from an American Judge which reads as follows : 'manufacture' implies a change, but every change is not manufacture and yet every,' change of an article is the result of treatment, labour and manipulation. But something more is necessary and there must be transformation; a new and different article must emerge having a distinctive name, character or .....

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reiterated the view expressed in DCM's case and observed that : "The prevalent and generally accepted test to ascertain that there is 'manufacture' is whether the change or the series of changes brought about by the application of processes take the commodity to the point where, commercially, it can no longer be regarded as the original commodity but is, instead, recognised as a distinct and new article that has emerged as a result of the processes. There might be borderline cas .....

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n the schedule they are excisable goods but whether such goods can be subjected to duty would depend on whether they were produced or manufactured by the person on whom duty is proposed to be levied. The expression "produced or manufactured" has further been explained. By this Court to mean that the goods so produced must satisfy the test of marketability. Consequently, it is always open to an assessee to prove that even though the goods in which he was carrying on business were excisa .....

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sion 'manufacture' unless it is shown that the process has brought into existence any new product having a distinct identity in the commercial world. In the absence of any evidence in that behalf which the Revenue ought to have laid, it is difficult to come to the conclusion that excisable goods came into existence by the treatment of cotton and nylon yarn into a muiltiford yarn." 12. What emerges from the above is excise duty is leviable on goods manufactured. The expression manufa .....

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nd definite article having a distinctive name, character or use and the said article must be marketable and it should be known to the market as such. In the absence of any one of the ingredients referred to above, the provisions of the Act are not attracted and no excise duty is leviable. Even if the goods so produced were excisable goods mentioned in the schedule, they cannot be subjected to duty unless they are marketed or capable of being marketed. The marketability is one of the principle te .....

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ed except that all the articles are put together in one box. It is true that by placing alt these articles in one kit the kit has a distinct name known as 'cable jointing kit'. However, there is no change in character and use of the articles placed in the kit. In other words, except the test that the articles which are placed in the kit has a distinct name, the other tests have not been satisfied. Therefore, placing different articles in the kit does not amount to manufacture. If once th .....

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isions of Hon'ble Supreme Court held that mere cutting or silting of steel sheet does not amount to manufacture because identity of the product remains unchanged and the steel remains steel even after cutting no new different and distinct article emerges having distinct name, character and use. The Special leave to appeal filed by the Union of India against the aforesaid judgment of Delhi High Court was dismissed by Hon'ble Supreme Court, reported in 2005 (181) ELT A 68 (SC). 34. The jud .....

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aluminium paste and aluminium medium in specified quantity for ready use as aluminium paint. 35. The case of Rajasthan State Chemical Works (supra) is also of no help to the respondent assessee as evident from paragraph 11,12 and 16 of the judgment as under: "11. Manufacture implies a change but every change is not manufacture, yet every change of an article is the result of treatment, labour and manipulation. Naturally, manufacture is the end-result of one or more processes through which t .....

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the commodity to the point where commercially it can no longer be regarded as the original commodity but instead is recognised as a new and distinct article that a manufacture can be said to take place. 12. Manufacture thus involves series of processes. Process in manufacture or in relation to manufacture implies not only the production but the various stages through which the raw material is subjected to change by different operations. It is the cumulative effect of the various processes to whi .....

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Notification: Rate of exchange of conversion of the foreign currency with effect from 8th September, 2017

News: Tax Payers Advised To Confirm Identities Of Income Tax Search Authorities

Notification: Amendment in Appendix 3 (SCOMET items) to Schedule- 2 of ITC (HS) Classification of Export and Import Items 2012

Notification: The Customs and Central Excise Duties Drawback Rules, 2017

Circular: The Customs and Central Excise Duties Drawback Rules, 2017 and All Industry Rates (AIRs) of Drawback related changes -reg.



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