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2016 (4) TMI 625 - CESTAT KOLKATA

2016 (4) TMI 625 - CESTAT KOLKATA - 2016 (344) E.L.T. 994 (Tri. - Kolkata) - Manufacture - fabrication of saddles - whether the appellant or the fabricators are the manufacturer of the saddles? - Held that:- “Saddle” is a common name known to the market and the fact that it is not brought and sold in the market could not in any manner diminish its capability of being marketable which is evident from the fact that the appellant themselves use the said saddle in the railway wagons for carrying HR .....

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e terms and conditions except that in one case the saddles were fitted in the Railway wagons and in another it were grouted to earth but with the common objective to place the HR coils on the said saddles. Thus, the circumstances in their earlier case decided by this Tribunal earlier is quite different from the present one, therefore, the judgement delivered in connection with fabrication of ladders and staircases at site, would not be comparable to the facts of the present case, accordingly, no .....

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ruction work. In the result, the appellant also failed to substantiate their claim on exemption from duty on the saddles under the above two Notifications. - Invoked extended period - Held that:- We find substance in the argument of the Revenue inasmuch as the appellant is required to disclose the true description of the goods and its classification would be determined on the basis of said declaration vis-`-vis the entries of the respective chapter headings/sub-headings etc. The reverse is n .....

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not be sustained. Consequently, extended period of limitation is applicable to the facts and circumstances of the present case. - Appellant are eligible to the Modvat credit, but, to ascertain the exact quantum of credit, it needs to be remitted to the Ld. Commissioner for verification/scrutiny. Since we have observed that the appellant are eligible to the MODVAT Credit on the duty paid inputs used in the manufacture of 240 no. of saddles and for determination of the exact amount of credit, .....

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cate For the Respondent : Shri K.Chowdhury, Supdt.(AR) ORDER PER DR. D.M. MISRA. 1. These two Appeals are filed against Order-in-Original No.01/COMMR./2004 dated 27.01.2004 passed by the Commissioner of Central Excise, Jamshedpur ( Appeal No.E/351/04) and Order-in-Appeal No.23/TPA/RAN/CEX/APPEAL/2005 dated 11.01.2005 passed by the Commissioner(Appeals) of Central Excise & Service Tax, Ranchi( Appeal No.E/157/05). 2. Facts of the case in relation to Appeal No. E/351/2004 are that the appellan .....

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he provisions of Rule 9(2) and 52A of Central Excise Rules, 1944 and penalty of ₹ 1.00 Lakh under Rule 9(2), 52A(B) and 173Q of Central Excise Rules, 1944 was imposed. Besides 240 number of saddles valued at ₹ 2,02,39,450.00 were confiscated under Rule 173Q of Central Excise Rules, 1944 with option to redeem the same on payment fine of ₹ 1.00 Lakh. The said Order was challenged by the Appellant before this Tribunal and this Tribunal Remanded the matter to the Commissioner for f .....

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; 1.50 Lakhs was directed. The said Order was also challenged before this Tribunal and it was remanded again by this Tribunal for denovo adjudication vide Order No.A-273/Kol/2003 dt.25.03.2003. 2.2 In the second denovo proceeding under the impugned order, duty of ₹ 30,35,917.50 was confirmed, penalty of ₹ 30,35,917.50 was imposed under Rule 173Q(1) read with Rule 9(2) and 52A of Central Excise Rules, 1944. 240 number of saddles valued at ₹ 2,02,39,450.00 was confiscated with op .....

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Hot Strip Mill (HSM) in the factory premises. On adjudication, the demand was confirmed by the Additional Commissioner of Central Excise and penalty of equivalent amount was imposed under section 11AC of Central Excise Act, 1944 and also under rule 173Q(1) of erstwhile Central Excise Rules, 1944. Aggrieved by the said order the appellant preferred an appeal before the Ld. Commissioner(Appeals), who by its order dated 11.01.2005 upheld the order of the adjudicating authority. Hence, the present .....

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t of exemption Notification No.61/90-CE dated 20.03.1990 and 41/1994-CE dated 01.03.1994 as applicable. Besides, the ld.Advocate has also pleaded that show cause notices issued on 10.06.1998 in relation Appeal No.EA-351/04 and show cause notice dated 08.09.2000 in relation to Appeals No.EA/157/05 were barred by limitation in as much in the first show cause Notice there was no suppression of facts as classifications lists were filed from time to time and in the second show cause notice all facts .....

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bring out saddles comprises of basically a horizontal plate (laid down on the earth) measuring 1 meter in width and 10 meters in length, over which smaller plates are gas-cut and welded in V shapes at an angle of 450 each from the base, which are later grouted to earth. He has contended that the fabrication is carried out by two contractors, namely, M/s.U.B.Engineering Ltd. and M/s.Eastern Transport Agencies where as foundation and grouting work was carried out by a third party contractor i.e. .....

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earth, as required to make them operational, these saddles become immovable and consequently seize to be goods. Accordingly, these are not excisable goods. The learned Sr.Advocate referred to the decision in the case of Union of India vs. Sonic Electrochem (P) Ltd. - 2002 (145) ELT 274(SC), Flex Engineering Ltd. v. CCE - 2012 (276) ELT 153(SC), Lupin Ltd. v. Union of India - 2013 (293) ELT 354(Guj.). 3.3. The second plank of his argument is that the saddles were neither marketable nor known to t .....

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2(g) of the Central Excise Act, 1944 as was in existence at the relevant time and accordingly liable to duty. Rebutting the contention of the Revenue relating to the use of saddles in railway wagons in which hot rolled coils were transported, the ld. Sr.Advocate submitted that such use cannot be construed that these saddles are marketable since no market enquiry has been carried out nor any evidence in this regard has been put-forth by the Revenue. It is his contention that to establish the mark .....

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the argument, the learned Sr. Advocate submitted assuming that the said saddles were manufactured then the Appellant cannot be treated as the manufacturer of the said saddles, but the respective fabricators, namely, M/s.U.B.Engineering Ltd. and M/s.Eastern Transport Agency Ltd., who has fabricated the saddles were the manufacturers. In this regard he has referred to the statement of Shri M.K.Bhuyan, Resident Engineer, M/s.U.B.Engineering dated 30.01.1995 and the work order dated 26.04.1993 issue .....

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manufacturing of the said goods and exercising the right to tell the contractors not only what to do, but how to do are factually incorrect, inasmuch as from the statements recorded by the department and also allegations in the show cause notice it would be clear that although the appellant had supplied certain input materials free of cost, the contractor also had to provide certain other materials for carrying out the contractual jobs under the respective work orders and the limited scope of s .....

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s Tribunal in their own case reported as The Tata Iron & Steel Co.Ltd. v. Commissioner of Customs & Central Excise, Jamshedpur - 2003 (156) ELT 681(T), wherein it has been held that the job-workers were the manufacturers in relation to the manufacture/fabrication of ladders and staircases at site. The finding of the ld.Commissioner that there exist a master-servant relationship is imaginary finding without supported by any materials, hence erroneous and incorrect in fact. The contracts w .....

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.Advocate is that the appellant are eligible to benefit of Notification No.61/9-CE dated20.03.1990 & 41/94 dt.01.03.1994. He has submitted that the saddles were complete upon fabrication by the two contractors namely M/s.U.B.Engineering and M/s.Eastern Transport Agencies and duty was demanded on saddles, whereas the grouting process was carried out by the third contractor M/s.Aparna Construction Co. at a stretch subsequent to the manufacture of the saddles as per a separate drawing namely an .....

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heir submission that the work carried out for erection of the saddles involve construction work, hence, the is untenable in law. In support, he has referred to the following decisions :- (i) CCE v. Afcon Pauling Joint Venture - 2005 (180) ELT 377(T) & 2005 (187) ELT A68(SC), (ii) Simplex Concrete Piles (India)Ltd. v. CC & CE - 2004 (172) ELT 369(T), (iii) Prestress (I) Pvt.Ltd. v. CCE - 2009 (245) ELT 269(T). 3.6 The learned Sr.Advocate further submitted that the demands are barred by li .....

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Rules did not require description of such fabricated structure beyond contained in the relevant tariff heading, therefore, it cannot be the requirement for the appellant to declare the goods specifically with a name which were coined by them only for its own purpose and name was neither known to the market nor mentioned in any technical literature books. The Central Excise authorities were fully aware of the fact that fabricated structures fall under sub-heading 7308.90 of CETA, 1985 and the app .....

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ow cause notice was issued on 08.09.2000 invoking extended period on the very same issue involving subsequent period, therefore, the demand is barred by limitation in view of the judgement of the Honble Supreme Court in the case of Nizam Sugar Factory v. CCE, AP - 2006 (197) ELT 456 (SC). 3.7 Further, he has submitted that in the event the appellant were required to pay duty on the saddles, they are eligible to avail MODVAT Credit on the duty paid inputs which was wrongly denied to them. In sup .....

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ddles at their premises by hiring fabricators. The appellant provided drawing and design to the fabricators and also raw materials/inputs including Oxygen gas and consumables for manufacture of the said saddles. The said fabrication was carried out at the instruction and under directed supervision of the appellants engineers at their factory premises. Throughout the manufacture of saddles, from the stage of raw materials, the ownership of the manufacturing remained with the appellants. It is hi .....

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ed to the appellants; one on 10.06.1998 covering the period between May, 1993 and May, 1995 and the second one was issued on 08.09.2000 for the period from November, 1995 to January, 1996 and May 1998. In both these cases demands were confirmed on merit as well as on limitation. He submits that fabrication of saddles out of the raw materials definitely involved manufactured within the meaning of section 2(f) of Central Excise Act, 1944, inasmuch as the saddles were having different name, charact .....

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cases do not deal with structures fabricated site. 4.3 Further he has submitted that the Appellant are manufacturer of saddles at their premises by hiring fabricators. The appellant had provided drawing and design and also the raw materials/goods were supplied to these fabricators. The job was done at the instruction and under the direct supervision of the Appellants engineers. Hence, the Appellant are the manufacturers of the saddles and not the fabricators as claimed by them. In support he ha .....

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itional condition in Notification No.61/90-CE was that the materials which are used for manufacture at site also must have suffered duty. It is his contention that fastening saddles to earth by nuts and bolts cannot be construed as construction at site. If this is considered as construction activity then fastening of any material to earth by nuts and bolts would result into construction and would lead to an absurd consequence, which cannot be the intention of the legislature in framing such exem .....

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had suffered duty or were received against prescribed duty paying documents in accordance with the procedure laid down under Rule 57G of erstwhile Central Excise Rules, 1944, the appellant, therefore, not entitled for the CENVAT Credit, which they claimed. 4.6 The ld.AR further submitted that the show cause notices were not barred by limitation inasmuch as in the first show cause notice dated 10.06.1998 the appellant did not disclose specifically that they were engaged in the manufacture of sad .....

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. It is his contention that even after commencement of manufacture of saddles, the appellant did not specifically declare the description of goods as saddles in the classification lists/declarations. Appellant also did not file price lists/declarations and failed to file return for saddles. However, in some cases, the appellant had paid duty on saddles therefore extended period of limitation is rightly invoked. Further, since 240 number of saddles were removed without payment of duty therefore, .....

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ts are eligible to the benefit of Notification No.61/90 dated 20.03.1990 and Notification No.41/94 dated 01.03.1994, (iv) the appellants are eligible to the benefit of MODVAT Credit, and (v) whether the demands are barred by limitation. 5.2 There is no dispute of the fact that saddles were fabricated inside the factory premises of the appellant and the said fabrication was carried out by two contractors/fabricators, namely, M/s.U.B.Engineering Co., M/s.Eastern Transport Agency and the fabricated .....

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that similar saddles were fabricated through contractors on the same terms and conditions but cleared on payment of duty when these were fixed on railway wagons for storage/transportation of HR coils. It is their contention that to satisfy the condition of marketability of fabricated/manufactured saddles, it need not be brought to the market for being bought and sold, but the capability of the said goods to be bought and sold in the market would suffice the purpose and object of marketability. 5 .....

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h rough uneven surface in Union Carbide, or PVC films in Bhor Industries or hydrolysate in Ambalal Sarabhai, the finding in each case on the basis of the material before the court was that the articles in question were not marketable and were not known to the market as such. The marketability is thus essentially a question of fact to be decided in the facts of each case. There can be no generalisation. The fact that the goods are not in fact marketed is of no relevance. So long as the goods ar .....

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ve a market. Even if there is only one purchaser of these articles, it must still be said that there is a market for these articles. The marketability of articles does not depend upon the number of purchasers nor is the market confined to the territorial limits of this country. The appellants own case before the excise authorities and the C.E.G.A.T. was that these poles are manufactured by independent contractors from whom it purchased them. This plea itself - though not pressed before us - is .....

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.1 Thus, the concept of marketability in the context of marketability of parts of steel structures of the above nature falling under Heading 73.08 cannot be viewed through a hawker s eye. Hawking in its traditional sense, where the hawker moves with the goods screaming for the attention of potential customers, cannot be applied to the marketability of such structures or parts of structures, unless the concept of hawking itself is widened to include E-hawking . The customer in the context of such .....

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bove items fall under Heading 73.08 are marketable commodities. 5.5 Recently while considering the excisability of an intermediate product, namely transmission assemblies which came into existence during the course of manufacture of Tractors the Hon ble Supreme Court in the case of Escorts Ltd. vs. CCE, Faridabad - 2015(319) ELT 406(SC) after considering the principle of law laid down by the Hon ble Supreme Court in earlier cases starting from UOI v. Delhi Cloth and General Mills 1977 (1) ELT 19 .....

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he persons in the market, who buy and sale, the test is satisfied. The fact that the product is generally not bought or sold or has no demand in the market is irrelevant. 5.6 Applying the aforesaid principle to the facts of the present case we are of the opinion that saddle is a common name known to the market and the fact that it is not brought and sold in the market could not in any manner diminish its capability of being marketable which is evident from the fact that the appellant themselves .....

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olts and could be removed from the place of its installation easily by unscrewing the nuts and bolts, therefore, are excisable goods. This receives support from the judgement of the Hon ble Supreme Court in Commr. of C.Ex. Ahmedabad Vs. Solid & Correct Engg. Works 2010 (252) ELT 481(SC). At para 33 of the said judgment laying down the principle their Lordships observed as: 33. It is noteworthy that in none of the cases relied upon by the assessee referred to above was there any element of in .....

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mstances that the installation and erection of machines at site were held to be by this Court, to be immovable property that ceased to remain moveable or marketable as they were at the time of their purchase. Once such a machine is fixed, embedded or assimilated in a permanent structure, the movable character of the machine becomes extinct. The same cannot thereafter be treated as moveable so as to be dutiable under the Excise Act. But cases in which there is no assimilation of the machine with .....

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ment in the sense that would make the machine a part and parcel of the earth permanently. In that view of the matter we see no difficulty in holding that the plants in question were not immovable property so as to be immune from the levy of excise duty. (emphasis supplied) 5.8 Thus there is no doubt that the saddles are excisable goods and accordingly chargeable to duty. 5.9 The second line of argument advanced by the learned Sr.Advocate is that even if saddles are considered to be manufactured .....

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ly of drawings, designs, raw materials including consumables, provided space for fabrication to the fabricators, occasional supervision of the fabrication work by their qualified engineers cannot make the appellant as manufacturer of the said saddles. In their own case this Tribunal has held that fabrication of ladders and staircases at site through job-workers would not make the appellant as manufacturers, but the job-workers were manufacturers. 5.10 Countering the said argument the Revenue has .....

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also contended by the Revenue that on fabrication of saddles under the same terms and conditions through fabricators and used in the railway wagons for transport of the HR coils accepted by the appellant as manufactured by them and appropriate duty was duly discharged at the time of its clearance. Therefore, the appellant cannot be allowed to claim that they are not manufacturer of the said saddles, but the fabricators. The Ld. A.R for the Revenue submitted that the case laws cited by the Appell .....

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nder tariff heading 9403 of CETA,1985 in their factory premises out of the raw materials supplied by M/s.Raymond Ltd. and based on their own drawings and specifications. In that case also M/s.Raymond Ltd. had supplied all raw materials, consumables such as welding rods, cutting gases etc. required for such fabrication work in their factory premises. In this factual back drop this Tribunal relying the ratio laid down by the Honble Supreme Court on the subject and that of decision in Maruti Udyog .....

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o on their shop floor itself. The appellants supplied all the raw materials for fabrication/repair/modification as well as the samples like welding electrodes, gas, paint, primer, thinner, etc. They were also to make available to the fabricator, the slot milling machine and the Keyway Milling machine without any charges. The Terms and Conditions of the various work orders clearly spell out a master and servant relationship between the appellants on one hand and the fabricators on the other, as n .....

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e. The facts relevant to the case were as follows : The appellant therein supplied textile yarns to power loom units and got the cloth manufactured (woven) on payment of job-charges but the dealings were camouflaged to appear as transactions of sale of yarn by the appellant to power loom units and purchase of cloth from them. The question arose as to who is the manufacturer and the Honble Apex Court held that power loom units were only hired labour and the supplier of yarn has to be treated as .....

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labour and the person who hires the labour has to be treated as the manufacturer. In the present case, the trolleys and racks have been fabricated on account of the appellant. They have supplied the raw materials, consumables, fuels, etc. required for the manufacture and the fabrication work has been undertaken in the appellant s own factory. The fabricators merely supplied labour for undertaking the fabrication work. Therefore, it has to be held that the appellants are the manufacturers of the .....

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find that for fabrication of similar saddles, when fitted to the railway wagons, the appellant had considered themselves as manufacturer and discharged duty even though the said saddles were also fabricated in their own premises from the raw materials supplied by the Appellant to the fabricators against same terms and conditions except that in one case the saddles were fitted in the Railway wagons and in another it were grouted to earth but with the common objective to place the HR coils on the .....

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tled to the benefit of Notification NO.61/90-CE dated 20.03.1990 and Notification No.41/94-CE dated 01.03.1994. For the sake of convenience the said Notifications are reproduced below:- [Notification No.61/90-CE, dated 20-3-1990] In exercise of the powers conferred by sub-section (1) 5A of the Central Excises and Salt Act, 1944 (1 of 1994), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts goods falling under Heading No.73.08 of the Sche .....

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ay be, has already been paid. [Notification No.41/94-CE, dated 01-3-1994] In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excises and Salt Act, 1944 (1 of 1944), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts goods of the description specified in column (3) of the Table hereto annexed and falling under Chapter or heading Nos. or sub-heading Nos. of the Schedule to the Central Excise Tariff Act, 1985 .....

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ds Rate Conditions 15. 73.08 All goods Nil If such goods are fabricated at site of work for use in construction work at such site 5.14 The common requirement in both the Notifications is that the goods falling under heading No.73.08 would be exempted from payment of whole of duty if fabricated at the site of construction work & for use in such construction work. The learned Sr.Advocate made a sincere attempt to establish that the saddles were fabricated at site of construction and since it h .....

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rk. In the result, the appellant also failed to substantiate their claim on exemption from duty on the saddles under the above two Notifications. 5.15 The next issue needs to be addressed is whether the demands confirmed in each of the Appeal is barred by limitation. In relation to Appeal No. EA-351/04 it is argued that in the Classification lists filed with the department one of the manufactured item was declared as fabricated steel structural , which according to the Appellant include saddles .....

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the fabricated items as saddles, the Revenue argued that whatever items were manufactured by the appellant, its true description ought to have been disclosed and accordingly its classification under particular heading is claimed by the assesse. The classification is later decided by the department which exercise would always be subsequent to the declaration of correct description of the item by the assessee. Besides, when same saddles were considered by the Appellant as excisable and duty was p .....

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s appropriate duty was paid but when used in the factory for same purpose treated as non dutiable without any valid reason. Therefore, we are of the view that the fact of manufacture and use of saddles in the factory premises were not disclosed in the respective classification list, therefore the claim of the appellant that all facts were within the knowledge of the department and no facts were suppressed cannot be sustained. Consequently, extended period of limitation is applicable to the facts .....

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the judgement of the Hon ble Supreme Court in Nizam Sugars case (supra). Consequently, the impugned order is unsustainable in law and accordingly liable to be set aside on the ground of limitation. Since, in our opinion the demand is barred by limitation, the other issues viz. eligibility of benefit of exemption 67/95 CE. Dt.16.03.1995 for captive use of saddles and correctness of the assessable value raised in the said Appeal become academic and accordingly not dealt with. 5.17 The next conten .....

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merit in the contention of the Revenue in view of the decision of the Hon ble Supreme Court in the case of Formica India Division vs. Collector of Central Excise - 1995 (77) ELT 511(SC) followed in the case of Commissioner of Central Excise, Salem vs. Chemplast Sanmar Ltd. - 2009 (239) ELT 398(Mad.) and followed by this Tribunal in the case of Narmada Enterprises vs. CCE, Bhopal - 2013 (298) ELT 394(Tri.-Del.). The learned Sr.Advocate in his written submission claimed that the appellant would b .....

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he penalty imposed under Rule 173Q read with other provisions of Central Excise Rules was ₹ 1.00 Lakh and the redemption fine was also ₹ 1.00 Lakh; however, in the de novo proceeding, the penalty was enhanced from ₹ 1.00 Lakh to ₹ 30,35,917.50 and redemption fine from ₹ 1.00 Lakh to ₹ 40.00 Lakhs , which is erroneous and bad in law. In support, he has referred to the judgement of Hon ble Supreme Court in the case of Banshi Dhar Lachhman Prasad and Another vs. .....

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