TaxTMI 
TaxTMI 
2004 (11) TMI 10
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....of execution order? 2. Whether the dutiability of bought out items in the manufacture of plant and equipment under Section 2(f) read with Section 3 of the Act falling under Chapter sub-heading No.8479.90 of Central Excise Tariff Act 1985 having been decided vide order in original dated 14.5.1999 (Annexure No.2) following/referring the judgment of Hon'ble Supreme Court in the case of Narne Tulman Manufacturing (P) Ltd. v. CCE (1989 Vol 38 ELT 566 SC) and Sirpur Paper Mills Ltd. v. CCE (1998 Vol 97 ELT 3 - SC), has achieved finality in view of the unchallenged order of Commissioner (Appeals) dated 22.3.2000 (Annexure no.3) and thus it was no longer open for the respondent to question the dutiability in the appeal before the CESTAT arising out of the consequential order dated 31.10.2001 (Annexure No.4) quantifying the demand passed by the Deputy Commissioner, Central Excise, Division-I, Noida? 3. Whether the CESTAT has committed a manifest error of law and facts both in applying the ratio of decision laid down by Hon'ble Supreme Court in the case of Collector of Central Excise, Indore v. Hindustan Lever Ltd. (2000 Vol 120 ELT 3 SC - relevant paragraph 1 & 5) which relates to....
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....the demand of Rs.94,03,500/-. Feeling aggrieved, the respondent preferred an appeal before the Commissioner (Appeals), Custom and Central Excise, Ghaziabad. The Commissioner, vide order dated 22.3.2000, had held that the process of assembly and erection of plant at site manufactured by the appellant with bought out items supplied directly at site amounts to manufacture of a distinct new commercial article and chargeable to duty under the Act and the Rules. He did not disturb the findings of the Assistant Commissioner in this regard. However, he remanded the matter to the Assistant Commissioner to redetermine the quantum of duty actually due after giving an opportunity to the appellant. The relevant portion of the order of the Commissioner (Appeals) is reproduced below:- "I have examined the case and have considered the submission put forth before me. I find that the issue regarding dutiability of plant machinery assembled/erected at site has now been settled by a catena of decisions by Tribunal and the Apex Court; also referred to by the ld. Assistant Commissioner. It has been held that because the items are heavy and so have to be fixed in what appear to be a permanent position ....
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....out items on which no duty was paid by the respondent. Feeling aggrieved, the respondent preferred an appeal before the Commissioner (Appeals), Custom and Central Excise, Noida. Before the Commissioner, personal hearing was given on 4.2.2003 before whom it was contended that no duty is leviable on bought out items. On the question of quantification, it was contended that their liability without admitting would be only of Rs.23.56 lacs as they would be entitled to MODVAT Credit on the duty paid on bought out items. The Commissioner (Appeals) did not go into the question of liability of the duty on bought out items. He did not accept the plea regarding entitlement of MODVAT Credit on the ground that the prescribed procedure has not been followed. Consequently, he confirmed the order passed by the adjudicating authority. Still feeling aggrieved, the respondent preferred an appeal before the Custom Excise and Service Tax Appellate Tribunal. Before the Tribunal, it was submitted on behalf of the respondent that there is no liability for payment of duty on various bought out items which were cleared directly to the site of the customers. On behalf of the appellant, it was submitted that ....
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....port of his preliminary objection, he has relied upon the following decisions:- (i) Union of India v. Auto Ignition Ltd., 2002 (142) ELT 292 (Bom); and (ii) Colour Chem Ltd. v. Union of India, 1998 (98) ELT 303 (Bom) against which the Special Leave Petition filed by Union of India has been rejected by the Apex Court reported in 1998 (104) E.L.T. Capital A 137 (SC). The learned Standing Counsel, however, submitted that the present appeal is confined only to the question as to whether the respondent could have raised/agitated the matter regarding dutiability of the goods before the Tribunal when it had not challenged the order of remand passed by the Commissioner (Appeals) holding that the duty is leviable on such bought out items and which order has become final. He, therefore, submitted that the present appeal does not raise any question regarding the rate of duty of excise or to the value of the goods for the purposes of assessment and, therefore, the present appeal is maintainable before this Court. 5. Having heard the learned counsel for the parties in respect of the preliminary objection, we find that in the present case the appeal has been preferred on the substantial ....
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....f the decision of the Apex Court in the case of Hindustan Lever Ltd., such a plea has rightly been entertained by the Tribunal as throughout the entire proceeding it had been contended that no duty is payable on bought out items which were supplied directly to the site of the customers. On merits, he submitted that no duty is payable on bought out items as the erection and commissioning was not undertaken by it but was entrusted to another identity, M/s K.S. Krishnan Associates Pvt. Ltd. The respondent was not manufacturer of bought out items and it had already paid duty on such bought out items. In support of his aforesaid submissions, he has relied upon the following decisions:- (i) Collector of Central Excise, Indore v. Hindustan Lever Ltd., 2000 (120) ELT 3 (SC); (ii) Satyadhyan Ghosal and others v. SM. Deorajin Debi and another, 1960 (3) SCR 590; (iii) Jasraj Inder Singh v. Hemraj Multanchand, 1977(2) SCC 155; (iv) Preetam Singh (dead) by L.Rs. and others v. Asstt. Director of Consolidation and others, (1996) 2 SCC 270; (v) Mittal Engineering Works (P) Ltd. v. CEE Meerut, 1996 (88) ELT 622 (SC); (vi) Quality Steel Tubes (P) Ltd. v. Collector of Central Excise, U.P.....
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....ggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing his order. If this position is accepted then the provisions for adjudication in the Act and the Rules will lose their relevance and the entire exercise will be rendered redundant. This position, in our view, will run counter to the scheme of the Act and will introduce an element of uncertainty in the entire process of levy and collection of excise duty. Such a position cannot be countenanced. The view taken by us also gain support from the provision in sub-rule (3) of Rule 11 wherein it is laid down that where as a result of any order passed in appeal or revision under the Act, refund of any duty becomes due to any person, the proper officer, may refund the amount to such person without his having to make any claim in that behalf. The provision indicates the importance attached to an order of the appellate or revisional authority under the Act. Therefore, an order which is appealable under....
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....t. Ltd. and Tungbhadra Industries Ltd. and held that discount should be allowed in regard to the value of compensation paid to be buyers in lieu of damages caused to goods during transit depending on the nature and extent of damage. The order of the Tribunal was challenged in appeal filed before the Apex Court. Before the Apex Court, learned counsel appearing for Hindustan Lever Ltd. raised a preliminary objection that the Collector of Central Excise should not be permitted to question the finding of the Tribunal as to the taxability of the damage discount because this question was finally adjudicated and decided by the Tribunal in the first round of litigation between the parties and the Collector of Central Excise, at that stage, did not question the finding of the Tribunal which remanded the matter back to the original authority to decide certain other questions. Hence the issue having attained finality, the same should not be permitted to be reopened by way of present appeal. The Apex Court repelled the preliminary objection on the ground that inspite of finding given by the Tribunal, the parties had once again joined the issue before the original authority on this very issue b....
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....l was not taken the correctness of the order of remand could not later be challenged in an appeal from the final decision as in the cases of other interlocutory orders. The second sub-section did not apply to the Privy Council and can have no application to appeals to the Supreme Court, one reason being that no appeal lay to the Privy Council or lies to the Supreme Court against an order of remand." 16. In the case of Preetam Singh (supra) the Apex Court has held as follows :- "6. When the matter was in revision before the Assistant Director of (Consolidation), he had the entire matter before him and his jurisdiction was unfettered. While in seisin of the matter in his revision jurisdiction, he was in complete control and in position to test the correctness of the order made by the Settlement Officer (Consolidation) effecting remand. In other words, in exercise of revision jurisdiction the Assistant Director (Consolidation) could examine the finding recorded by the Settlement Officer as to the abandonment of the land in dispute by those tenants who had been recorded at the crucial time in the Khasra of 1359 Fasli. That power as a superior court the Assistant Director (Consolida....