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2016 (1) TMI 1012 - CESTAT KOLKATA

2016 (1) TMI 1012 - CESTAT KOLKATA - 2016 (335) E.L.T. 124 (Tri. - Kolkata) - Benefit of Exemption Notf No. 182/87-CE dt 10/7/87 denied - manufacturing of Coal Tubs in the mines. - demand confirmed - Held that:- Appellant is a public sector undertaking and it is not ethical on their part now to agitate the time bar aspect afresh after conceding the same before us in the earlier proceedings. Reliance by the appellant on the Apex Courtís case law in the case of Union of India Vs Madhumilan syntax .....

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atio laid by Honíble Apex Court is not applicable to the present factual matrix when appellant is a Public Sector undertaking and principles of natural justice have not been violated earlier. In view of the above observations appeal filed by the appellant on the grounds of limitations again, when not even agitated before the Adjudicating authority in remand proceedings, can not be entertained & is required to be dismissed. - So for as imposition of penalty upon the appellant is concerned in .....

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, is excessive we accordingly reduce this penalty from ₹ 10, lakh to ₹ 10,000/- (Ten thousand only) - Appeal No. E/645/04 - ORDER No. FO/A/75803/2015 - Dated:- 17-12-2015 - DR. D.M.MISRA, (JUDICIAL) MEMBER AND SHRI H.K.THAKUR, MEMBER(TECHNICAL) For the Petitioner ; Shri Rajeev Agarwal, C.A For the Respondent : Shri S. S. Chatterjee, Supdt, (AR) ORDER Per Shri H.K.Thakur The present appeal has been filed by appellant M/s Bharat Coking Coal Ltd (A Public Sector Undertaking) against OIO .....

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appearing on behalf of the appellant argued that the period of dispute is from 1/3/1986 to 27/7/1988. That appellant is manufacturing Coal Tubs in the mines. That these Coal Tubs before and after the above disputed period were exempted and appellant was under the bonafide belief that during the intermediate disputed period also their product must have been exempted. Learned CA appearing on behalf of the appellant fairly conceded that benefit of exemption Notf No. 182/87-CE dt 10/7/87 was not ad .....

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e time bar aspect was conceded before the CESTAT earlier the same can be raised again during the present proceedings in view of the Apex Court s decision in the case of Union of India Vs Madhumilan Syntex Ltd [2006 (195) ELT 141 (S.C.)]. 3. Sh. S. S. Chatterjee Supdt (AR) appearing on behalf of the Revenue argued that there were only two issues regarding admissibility of Notf No. 182/87-CE and point of limitation was not pressed by appellant before this bench while passing order dt 1/5/2000 in A .....

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ubmits that the appellants are purchasing various parts namely coal tubs without wheel, wheel and axles, C & D links, tub blocks etc. and assembling these parts in their workshop/colliery. He submits that such process of fitting and assembling of component of coal tubs cannot amount to a manufacturing activity within the meaning and scope of Section 2(f) of Central Excises Act, 1944 inasmuch as no new product is brought into existence by such process of fitting. This contention of the appell .....

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After hearing Shri R.K. Roy, ld. JDR we do not feel convinced on the arguments of ld. Advocate on this point. The activity undertaken by the appellants is not a simple process of buying of various items from the market and connecting them with each other, as was the case relied upon by the ld. Advocate. We find that the appellants are purchasing the various articles from the market which articles cannot be called, by any stretch of imagination, complete coal tubs. Neither the unwheeled coal tub, .....

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undertaken by them into a non-manufacturing activity. Accordingly we fully agree with the findings of the Commissioner that fitting and assembling of separately identifiable products results into an altogether separate identifiable final product having a specific identity, name and use. Accordingly we reject the said plea of the appellants. 4. It has also been argued before us that the demand confirmed by the Commissioner also includes the demands in respect of the repaired coal tubs. Dr. Chakra .....

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ed in the mines w.e.f. 10-7-1987, the date of issuance of the said notification. For this proposition he relies upon the Tribunal s decision in the case of Central Coalfield Ltd. v. C.C.E., Jsr. - 1997 (23) RLT 269 (CEGAT) wherein benefit was extended to the appellants in that case. However, he fairly conceeds that the said notification was not claimed before the Commissioner. He also submits that in case of confirmation of demand of duty on their final product, the appellants are entitled to av .....

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rty in view of the Tribunal s judgement in the case reported in 23 RLT 269 we are not passing any orders on the same. The appeal is thus allowed by way of remand for fresh decision in the light of the observations made in the preceding paragraphs. 4.1 During the course of hearing before us appellant has conceded the inadmissibility of Notf No. 182/87-CE & Modvat Credit. Appellant did not press on the point of limitations before this bench when the remand order dt 1/5/2000 was passed and the .....

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r part now to agitate the time bar aspect afresh after conceding the same before us in the earlier proceedings. Reliance by the appellant on the Apex Court s case law in the case of Union of India Vs Madhumilan syntax Ltd (Supra) is misplaced because the order passed by the Apex court was as a result of a writ petition against an order of the lower authorities without affording any opportunity to the assessee. In the present case before us the concession was given after the adjudicating authorit .....

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