TMI Blog2016 (5) TMI 745X X X X Extracts X X X X X X X X Extracts X X X X ..... ereby notification No. 214/86-CE dt. 25.3.1986 was clearly declared. The jurisdictional excise authority of the body builders despite knowing that the bus body building is exempted, pre-authenticated the Annexure II challans. Therefore entire facts related to the bus body builders and the movement of goods and manufactured of goods under job work was very much in the knowledge of Central Excise authorities of both the jurisdiction therefore we do not see any suppression of fact on the part either of bus body builder or of respondent. Therefore the Commissioner has rightly held the demand as time bar. - Decided against the revenue - Appeal No. E/2803/2005 - Order No.A/87340/16/EB - Dated:- 28-4-2016 - SHRI RAMESH NAIR, MEMBER (JUDICIAL) AND SHRI RAJU, MEMBER (TECHNICAL) For the Petitioner : Shri R.K. Maji, Asstt. Commr. (A.R.) For the Respondent : Shri M.H. Patil, Advocate with Ms. Aparna Hirandagi, Advocate, and Shri Akshit Navenay, Advocate ORDER PER : RAMESH NAIR The appeal of the Revenue is directed against Order-in-Original No. 01/KKS/04-05 dt. 28.6.2004 passed by Commissioner of Central Excise, Mumbai-III, whereby Ld. Commissioner dropped the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f time bar. Being aggrieved by the impugned order, the appellant is before us. 3. Shri R.K. Maji the Ld. Assistant Commissioner (A.R.) appearing on behalf of the Revenue reiterating the grounds of appeal, submits that on merit it is a clear case that the job worker being a manufacturer is alone responsible for the payment of excise duty even though Notification No. 214/86-CE bind the principal supplier of raw material for discharging excise duty and exemption on job work is subject to certain condition that the principal raw material supplier will discharge excise duty on their final product. In this case admittedly the bus body builders have not discharged the excise duty on their final product however they cleared the goods under exemption. Since the principal manufacturer has not complied with the condition of the notification No. 214/86-/CE it is not legally applicable. Therefore in absence of applicability of this notification normal Central Excise provision for discharging excise duty shall apply accordingly the person who is the manufacturer is liable to pay the excise duty. In the present case, the respondent who manufactured the goods though on job work basis but his st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent. 5. We have carefully considered the submissions made by both the sides. On the issue of demand being time bar, we find that the period involved in the show cause notice is 1991-92 to March 1995 whereas the show cause notice was issued on 31.7.1996 accordingly entire demand is beyond one year of normal period. On perusal of the records and submissions, we find that for the purpose of movement of goods from bus body builders to the respondent, manufacture of goods on job work basis , return of goods back to bus body builders and use thereof in the bus body buildings were undertaken in terms of Rule 57F(2) and/or Notification No. 214/86-CE dt. 25.3.1986. In this regard, the bus body builders filed intimation along with undertaking to the Central Excise Authority of job worker. The material was supplied under the cover of Annexure II challan. The said Annexure II challan was pre-authenticated by the Central Excise authorities of the jurisdiction of bus body builders. In the classification list also whereby notification No. 214/86-CE dt. 25.3.1986 was clearly declared. The jurisdictional excise authority of the body builders despite knowing that the bus body building ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at even prior to 23.12.1994 the Department had full knowledge of the fact that the assessee was also carrying on the said process on job work basis. In the Circumstances, the said Show Cause Notice issued on 31.7.1996 cannot invoke the extended period of 5 years under the proviso to Section l1A(1) of the said Act on the alleged ground that the department came to know only after they made a surprise visit on 23.12.1994. The Show Cause Notice is therefore barred by limitation and on this ground alone the demand made is not sustainable. The benefit under Notification No. 214/86 dated 23.3.1986 is to be availed by the suppliers of the raw materials and not by a job worker and as such in the instant case the said Bus Body Builders being the suppliers of raw materials to the assessee, were the people who availed the benefit under the said Notification. Compliance or non-compliance of the terms of the said Notification for availment of the benefit thereunder is the Bus Body Builders look out. The assessee are neither concerned nor responsible or liable for the compliance or non-compliance thereof by the Bus Body Builders. The said Notification sets out that it is the supplier who has to u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f and simultaneously under Serial No.17 all goods under Chapter sub-heading no. 87.02 are exempted from payment of entire Excise Duty on a condition that if no credit of the Duty paid on the chassis used in the manufacture of such motor vehicles and on the other inputs received by a manufacturer on or after 24.4.1986 has been taken under Rule 56A or 57A of the said Rules. Similarly, in respect of goods under Chapter sub-heading 87.04 either there is duty of 40 or 15 as mentioned in Item at Serial no.6 or nil under Serial no.18 if a Similar condition is fulfilled i.e. if no credit of the duty paid on the chassis or inputs is taken under Rule 56A or 57A of the said Rules. In the circumstances, the manufacturer of Bus Bodies depending on the circumstances would have to pay duty on the final products or claim exemption from payment of total duty, if they fulfill the said condition. The assessee not informed by the Bus Body Builders nor could they have known, when the goods were received from the said Bus Body Builders, that they (Bus Body Builders) would be claiming exemption from payment of full Excise Duty having fulfilled the condition mentioned in the said Notification. Further, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng goods from factory which was received under Annexure-II challans. In a nutshell, since the goods were received under Annexure II challans, the suppliers had furnished all undertakings and given all intimations as required under Notification No. 214/86 and final products manufactured by the suppliers, not being fully exempt but only being conditionally exempt under Notification No: 63/93 dated 28.2.93, the assessee were right in their bonafide belief that things were in order and cleared the laminated aluminium sheets under Annexure II challans availing exemption of Notification No. 214/86, the intention of which they had declared in their price lists. At the stage of clearing their goods on Annexure II challans to the suppliers, they were not expected to anticipate that the suppliers would avail exemption on their finished goods that is Bus Bodies under Notification No. 63/93 and therefore would have paid duty on laminated aluminium sheets. As there has not been any act of suppression by the assessee, the entire demand made in their Show Cause Notice dated 31.7.96 demanding duty from March'93 to March'95 is time barred for recovery. (iv) On the basis of a letters d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy Builders decided to avail Notification No. 83/94 and Notfn.84/94 and informed the Central Excise authorities concerned including Range Officer of the assessee vide their letters 28.4.94 (In-Coach Builders), 10.5.94 (Bharat Coach Builders) and 9.5.1994 (Bharati Workshop) and gave necessary declarations thereon. Thereafter, they started sending their goods to the assessee for job work on simple challan with declaration and got back the job worked goods without payment of duty under the facility of these Notifications Nos. 83/94 and Nos.84/94. However, they suppressed the fact that they are not eligible to avail of these notifications, because these notifications were applicable to only those who were availing SSI benefit under Notification No.1/93. However, since all procedural compliance to avail of these notifications were made by the Bus Body Builders and goods were sent to assessee under simple challans, the assessee processed the goods were sent to assessee under simple challans, the assessee processed the goods and returned to the Bus Body Builders on the same challans without payment of duty under bonafide belief that they were eligible to avail of the benefits of the Notif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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