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Defence Land Systems India Pvt. Limited Versus Commissioner of Central Excise & ST, Delhi-IV

2017 (10) TMI 554 - CESTAT CHANDIGARH

Manufacture - bullet-proofing activity undertaken by the appellant - job-work - It was alleged that as the bullet proofing was done by a division of Mahindra & Mahindra, the cost of bullet proofing should be included in the value of base vehicle cleared by Mahindra& Mahindra in terms of Rule 10A of the Central Excise Valuation Rules, 2000 as the said activity amounts to manufacture. It was alleged that the activity amounts to manufacture and cost of bullet proofing was to be added to the cost of .....

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nd no duty is payable by the appellant. - With regard to Mahindra Scorpio and Mahindra Bus, we find that the process undertaken by the appellant involves the removal of body shell of the vehicle and reinforcing the same with bullet proofing sheets from the inside, strengthening the platform by welding iron studs on the weak joints of the platform and replacement of coils and shock absorbers so as to enable the platform to bear the increased weight of the base vehicle after bullet proofing. T .....

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orpio and the Bus remains the Bus after bullet proofing and therefore, it cannot be said that the activity of bullet proofing amounts to manufacture. Accordingly, the activity undertaken by the appellant does not amount to manufacture. Merely few additions do not constitute a production or manufacture - activity undertaken by the appellant does not amount to manufacture. - The adjudication order is beyond the scope of show cause notice with regard to the classification proposed in the show c .....

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hroof, Sr. Advocate Sh. Dinesh Agarwal & Sh. Anik Shah, Advocates for the appellants Shri Atul Handa, AR for the respondent ORDER Per. Ashok Jindal The appellant is in appeal against the impugned order confirming the demand of duty holding that bullet-proofing activity undertaken by the appellant amounts to manufacture. 2. The facts of the case are that the appellant is doing the bullet-proofing activity on the vehicle manufactured by M/s. Mahindra and Mahindra on job work basis. The appella .....

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of the body shell of the vehicle and reinforcing the same with bulletproof sheets, strengthening the platform by welding iron studs on the weak joints of the platform and replacement of coils and shock absorbers so as to enable the platform to bear the increased weight of the base vehicle after bullet proofing. The body shell is then reinstalled on the platform and the floor is covered with a ballistic carpet. The glass is also changed to thicker bullet proof glass. These vehicles are also sold .....

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icles. 3. In 2003, the Revenue started enquiries as the process of bullet proofing of the motor vehicle known as Mahindra Rakshak (Mahindra Bolero Jeep) amounts to manufacture or not. It was alleged that as the bullet proofing was done by a division of Mahindra & Mahindra, the cost of bullet proofing should be included in the value of base vehicle cleared by Mahindra& Mahindra in terms of Rule 10A of the Central Excise Valuation Rules, 2000 as the said activity amounts to manufacture. It .....

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er of the Commissioner (Appeals) reported in - 2010 (262) ELT 366 (Tr.) which has been affirmed by the Hon ble Apex Court reported in - 2016 (334) ELT 193 (SC). 5. The issue with regard to the Mahinidra Rakshak vehicles once again came up for consideration before the Commissioner of Central Excise, Nashik who vide order dated 17.06.2004 confirmed the demand of duty by adding the value of bullet proofing which was undertaken on a job work basis as bullet proofing did not amount to manufacture. Th .....

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ereafter on further investigation, a show cause notice dated 29.1.2013 was issued to the appellant alleging that the department came to the knowledge on 01.01.2012 that the appellant carried out the process which amount to manufacture and they have intentionally did not disclose this fact in the ER-1 return and not pay duty as the process of bulleting proofing amounts to manufacture as such process converted the base vehicle into a specialized vehicle having a distinct name, character and use. T .....

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ppellant submits that the show cause notice dated 29.1.2013 is barred by limitation as the adjudicating authority ignored the fact that as far back as in 2003, the department after making the requisite inquiries alleged that the appellants predecessor-in-title (MDS) was, by bulleting proofing the M & M vehicles, manufacturing new product. Further, a mere perusal of the Order dated 17.06.2004, it is clear that the very same process of bullet proofing that has been set out by the department in .....

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7 (95) ELT 164 (SC) (iv) CCE Vs. Pioneer Scientific Glass Works-2006 (197) ELT 308 (SC) (v) Uniworth Textiles Ltd. Vs. CCE, Raiipur-2013 (288) ELT 161 (SC) 7. He further submits that the Commissioner (Appeals) and the Commissioner Nashik had held that bullet proofing does not amount to manufacture. Therefore, due to change of opinion, the extended period of limitation is not invokable. To support this contention, he relied on the decision of the Hon ble Madras High Court in the case of Madura Po .....

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Further, the Commissioner, Nashik in his order confirmed that bullet proofing does not amount to manufacture. The said order has been affirmed by this Tribunal. Therefore, the activity of bullet proofing in respect of the said vehicle does not result in into existence a new product, having a new name, character and use. A mere comparison of the pictures of the M & M Scorpio, Bolero Jeep and Bus with the pictures of the BPS, Rakshak and BP Bus would show that there is no change whatsoever to .....

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e body shell of the vehicle and reinforcing the same with bullet proofing sheets from the inside, strengthening the platform by welding iron studs on the weak joints of the platform and replacement of coils and shock absorbers so as to enable the platform to bear the increased weight of the base vehicle after bullet proofing. The body shell is then reinstalled on the platform and the floor is covered with a ballistic carpet. The glass is also changed to thicker bullet proof glass. These vehicles .....

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E-2007 (210) ELT 177 (SC) (5) VeeKalyan Industries Vs. CCE-1996 (83) ELT 262 (SC) (6) CCE Vs. Tarpaulin International -2010 (256) ELT 481 (SC) (7) Metlex (I) Pvt. Limited Vs. CCE-2004 (165) ELT 129 (SC) (8) Gujarat Steel Tubes Limited Vs. State of Kerala-1989 (3) SCC 127 (9) Sterling Foods Vs. State of Karnataka-1986 (26) ELT 3 (SC( (10) CCE Vs. Midas Techniquies Pvt. Limited -2015 (329) ELT 926 (Tri.) (11) Fram & Company Vs. CCE - 1987 (30) ELT 541 (Tri.) 10. He contended that the bullet pr .....

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mely, transportation of civilians. The bullet proofing of the body is not essential but adds to the security of the passenger. The bullet proof Scorpio, Rakshak or the Bullet proof Bus cannot be distinguished from the base vehicle, and even they are known as Bullet Proof Scorpio, Rakshak and Bullet Proof Bus it cannot be said that it is a different product. He relied on the decision in the case of CCE Vs. Dilip Chhabaria Designs Pvt. Limited -2015 (325) ELT 390 (Tri.). 11. He further submits tha .....

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12. He further submits that there is no chapter note in chapter 87 which artificially defines fabrication of bodies on the existing motor vehicles as amounting to manufacture. The fabrication of bodies on existing motors vehicles in any event does not amount to manufacture as held in the following judgements: (a) Darshan Singh Pavitar Vs. UOI-1988 (34) ELT 631 (P&H) (b) Malwa Motor Body Works Vs. CCE-1989 (44) ELT 653 ((T) (c) CCE Vs. Roplas (India) Ltd.-1991 (52) ELT 240 (T) (d) CCE Vs. Rop .....

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ice proposed classification of the BP Scorpio under sub heading 8703 3392. This sub-heading is not applicable for two reasons: (i) the sub-heading is applicable to vehicles of a cylinder capacity exceeding 2500 cc, whereas the Scorpio has a cylinder capacity of only 2179 cc; and (ii) the said sub-heading covered "Specialized transport vehicles like ambulances, prison vans, and the like". The BP Scorpio is not a specialized vehicle where the exterior and the interiors are altered for a .....

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ot proposed in the show cause notice. The Commissioner has therefore clearly travelled beyond the scope of show cause notice which is not permissible in the light of the decision of Tribunal in the case of Aurobindo Pharma Limited Vs. CCE-2008 (10) STR 611 (T). He further submits that this sub-heading is not applicable for the reasons set out hereinabove. 16. He further submits that the Scorpio manufactured by M & M classified under sub heading 8703 3299. There being no difference between th .....

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e made regarding the classification of the bullet proof bus. Despite the same, the adjudicating authority has purported to classify the said vehicle under sub heading 8703 3392 wrongly alleging that there was no dispute with regard to its classification under that sub-heading. 17. He further submits that without prejudice to the aforesaid, the classification under heading 8703 is manifestly incorrect and shows total non-application of mind and heading 8702 covers motor vehicles for transport of .....

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here is no allegation to that regard. 19. He further submits that the adjudicating has erred in recalculating the demand by working backwards from the cum-duty price. He also submitted that the penalty is not imposable on the appellant in the light of the following decisions: (a) CCE Vs. Pioneer Scientific Glass Works-2006 (197) ELT 308 (SC) (b) CCE, Belgaum Vs. S.R.V. Automobiles-2014 (299) ELT 301 (Kar.) (c) CCE, Mumbai Vs. Danmet Chemicals Pvt. Limited - 2007 (216) ELT 3 (SC) 20. He therefore .....

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receiving the final price from the ultimate users. As per judicial pronouncements of the Hon ble Apex Court, an activity to be called as manufacture under Central Excise law, a new commercial product should emerge, different from the one with which the process started. After bullet proofing done by the appellant, a new product comes into existence because inserting bullet proof layers by using specific frames, by removing the body of the base vehicle, strengthening the platform by welding iron s .....

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a commercially different use and a commercially separate market. He also relied on the following decisions: (a) UOI Vs. Delhi Cloth & General Mills Ltd.-1977 (1) J199 (SC) (b) UOI Vs. Parle Products Pvt.Ltd.-1994 (74) ELT 492 (SC) (c) AP State Electricity Board's. CCE, Hyderabad-1994 (70) ELT 3 (SC) (d) Empire Industries Ltd. UOI-1985 (20) ELT 179 (SC) (e) South Bihar Sugar Mills Ltd. Vs. UOI-1978 (2) ELT J 336 (SC) (f) Indian Cables Co. Limited Vs. CCE-1994 (74) ELT 22 (SC). 23. He fur .....

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in hand is whether the bullet proofing activity done by the job worker amounts to manufacture or not. 24. He further submits that malafide intention of the party is clearly brought out by the adjudicating authority as the appellant never disclosed the fact to the department that the process carried out by them to produce Marksman, RIV and BPS amounts to manufacture. It came to the notice of the department only when the audit of the unit was conducted. This fact was also not disclosed during fil .....

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adjudicating authority is beyond the scope of the show cause notice or not: (d) Whether the extended period of limitation is invokable or not (e) Whether the penalty on the appellant are imposable or not 27. Whether the activities comes under manufacturing or not, we find that the said issue came up before this Tribunal in the case of Mahindra & Mahindra Limited (supra) wherein the this Tribunal held as under:- "4. The Revenue heavily relied upon the Hon ble Supreme Courts decision in t .....

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ase vehicle. It is also submitted that when the base vehicle is supplied to job-worker, the responsibility of supply of Bullet Proof Jeep to the police departments remained with M/s. Mahindra & Mahindra ltd. Hence the demand is rightly made. 5. We find that the Tribunal in the appellantsown case where the Bullet Proof Jeep was supplied to J&K Police and the process of bullet proofing was undertaken by the job-worker, the Tribunal after relying upon the Boards Circular No.139/08/2000-CX, .....

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b worker. 6. The Tribunal has held as under in the case of the appellant i.e. CC Nasik v. Mahindra & Mahindra (supra) : '4. We have considered the rival submissions and relevant records. The moot point is what is the transaction value in this case. Department's contention is that since MML is a single entity and order is placed on one of their divisions, the value to be adopted is for the vehicle supplied to the customer and not the value of the base vehicle removed from the responde .....

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entral Excise Rules, 1944 and Rule 9 of Central Excise Rules, 2002 required every manufacturer to be registered and C.B.E. & C. is empowered to specify conditions and limitations. The Board vide Notification No.35/2001-C.E. (N.T.), dated 26-6-2001 as amended has prescribed conditions. According to the notification, if a registered person has more than one premises, he shall obtain separate registration certificate for each premises. The fact that each premises should have a registration emer .....

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d under main provisions of Section 4(1)(a) of the Act, rules for valuation have to be resorted.' 7. A hypothetical example makes the position clear. Let us take an assessee who has 4 divisions in different parts of the country, each making plastic granules, plastic films, plastic bags and printed bags. For the finished product of one division, the finished product of another division is the raw material. If a purchase order is placed on the division for printed plastic bag, question arises w .....

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value has to be determined under Sec. 4(1)(b). 8. We also find that Commissioner(Appeals) in her order has considered this aspect in detail before setting aside the order. Her observations relevant are reproduced below for better appreciation :- "15. Now the question as to under these types of transaction and circumstances, whether the value of processing carried out by the independent contractor can be included in the assessable value of the goods cleared, without carrying out such process .....

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duty paid goods are cleared to other units for carrying further processes not amounting to manufacture and the other unit belongs to same group or is that of the job workers who merely processes the goods without owning them and collects job charges and return or cleared the goods on behalf of the supplier of the goods. The Law Ministry has advised that the judgment of the Siddharth Tubes Ltd. does not enable the department to charge duty on value addition outside the factory of clearance on acc .....

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appellants contention that the above clarification squarely applies in their case where the bare vehicles were cleared from their factory on payment of duty and the value addition on account of bullet proofing was carried out by the independent job worker viz. M/s. Metaltech Motor Bodies, in the premises of the job worker. (6). Almost an identical issue relating to the place of removal after the amendment came up before the two member Bench headed by the President of the Tribunal, in Castrol Ind .....

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as under :- "In the case of removal of goods from the depot the time of removal shall be the time at which such goods were cleared from the factory as per definition of time of removalprovided by sub-clause(b)(a) to clause (iv) of Section 4 of the Act." The same view had also been taken by the Western Bench of the Tribunal in Sarita Chemicals Ltd. v. C.C.E., Mumbai IV - 2000 (119) E.L.T. 394 (Tribunal) = 1999 (34) RLT 573 (CEGAT). 18. It is seen from the aforesaid observations of the T .....

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y Commissioner (Appeals), Boards circular and our analysis of legal provisions show that Commissioner (Appeals)order has to be upheld. We find no merit in the appeal and dismiss the same. 10. The ratio of the above decision is fully applicable to the present case. We find no reason to take a different view. 11. In view of the above decision, the impugned order is set aside and the appeal is allowed. The said issue also came up before the Tribunal in the case of Nasik unit of the appellant and th .....

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le and reinforcing the same with bullet proofing sheets from the inside, strengthening the platform by welding iron studs on the weak joints of the platform and replacement of coils and shock absorbers so as to enable the platform to bear the increased weight of the base vehicle after bullet proofing. The body shell is then reinstalled on the platform and the floor is covered with a ballistic carpet. The glass is also changed to thicker bullet proof glass. We have seen that Mahindra Scorpio rema .....

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tomers amounts to manufacture and duty is required to pay. The said issue has been examined by this Tribunal and this Tribunal has held as under:- "6. In all the appeals the issues to be decided by us are as under : (a) Whether customisation of the motor vehicles as per requirements of customers amounts to manufacture as per Section 2(f) of Central Excise Act, 1944 and/or Chapter Note 3 of Chapter 87 of Central Excise Tariff. (b) Whether dropping of demand by the Commissioner on alleged rem .....

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id cars and vehicles these duty paid vehicles are completely ready for use with its body. They are doing cosmetic changes as per the requirement of the customer inside and outside of the vehicle. In our considered view these activity do not amount to manufacture for the reason that the original duty paid motor vehicles remained as motor vehicles only, except some changes and due to these changes original identity of the product in terms of Central Excise provisions does not change. We find that .....

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acture of a motor vehicle. Each such activity described in the said Chapter Note would independently qualify for being manufacturing process attracting central excise levy on the resultant motor vehicles in terms of said Chapter Note. As per the fact of the present case it is undisputed that in the activity of customization of the car, the respondent has only made partial changes in the completely built up vehicle therefore they have neither fabricated any body/equipment nor mounted the same on .....

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plete body and mounting thereof on the chassis. Therefore the said judgments particularly Kamal Auto Industries v. CCE (supra), and CCE v. Satguru Auto Builders (supra) are not applicable in the present case. In view of this, we upheld the setting aside the demand in respect of customization of the motor vehicle. As regard the dropping of the demand on account of alleged removal of add on kits and parts and shortage found in the physical stock verification in Powai and Silvassa unit, we find tha .....

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uthority for passing a fresh order after appreciating the facts, considering the representation, if any, made by the respondent, issue of time bar etc. As regard the duty demand related to clearances claimed to be covered under SSI Notification No.8/2001-C.E., dated 1-3-2001 during the year 2001-02 it is observed that Ld. Commissioner while computing the aggregate value of ₹ 3 Crores during the year 2000-01 made an error that value of ₹ 1,03,04,873/- towards clearances of bus/tempo t .....

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limit of ₹ 3 cores during the year 2000-01 and accordingly the respondent is not eligible for SSI Exemption in the year 2001-02. However, the issue of time bar is yet to be considered by the adjudicating authority in respect of duty demand proposed by denying the SSI exemption, we therefore direct the adjudicating authority to reconsider the demand related to SSI exemption from limitation aspect. The ld. Counsel made submission that whatsoever demand is confirmed the abatement of excise d .....

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minimum limit of penalty amount is ₹ 10,000/- therefore the Commissioner has erred in imposing penalty of ₹ 5,000/- in each order. We therefore hold that the penalty of ₹ 10,000/- in each order on Shri B.D. Bajaj should be imposed. In view of our above discussion, we upheld the setting aside the demand in respect of customization of motor vehicle as held by the Ld. Commissioner in order in OIO No. 25/2003, dated 10-12-2003. However the matter relates to OIO No. 26/2003 and 27/ .....

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d." Further we find that, in the case of Servo-Med Industries Pvt. Limited (supra), the Hon'ble Apex Court has laid down a test to determine whether the activity amounts to manufacture or not, as under:- "27. The case law discussed above falls into four neat categories. (1) Where the goods remain exactly the same even after a particular process, there is obviously no manufacture involved. Processes which remove foreign matter from goods complete in themselves and/or processes which .....

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e Brakes India case and cases where the transformation of goods having a shelf life which is of extremely small duration. In these cases also no manufacture of goods takes place. (4) Where the goods are transformed into goods which are different and/or new after a particular process, such goods being marketable as such. It is in this category that manufacture of goods can be said to take place. We find that the Hon'ble Apex Court observed, whether the goods remain essentially the same after .....

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rified the position as under:- "3. The Conference took note of the clarification issued by the Ministry vide F. No. B.19/4/86-TRU (pt.), dated 1-7-1986, according to which building of body chassis by independent body building units would amount to 'manufacture' of goods under heading Nos. 87.02 to 87.04 as the case may be. However, in this cases, only certain modifications on the body already built are carried out, hence this process cannot be considered as manufacture. Accordingly, .....

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question were proposed to be classified under Chapter 8703 3392 and the ld. Commissioner has classified the vehicles under Chapter heading 8703 3292. For better appreciation, we reproduce the Chapter tariff heading as under:- Tariff Item Description of goods 8702 MOTOR VEHICLES FOR THE TRANSPORT OF TEN OR MORE PERSONS, INCLUDING THE DRIVER 8703 MOTOR CARS AND OTHER MOTOR VEHICLES PRINCIPALLY DESIGNED FOR THE TRANSPORT OF PERSONS (OTHER THAN THOSE OF HEADING 8702), INCLUDING STATION WAGONS AND RA .....

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. In that circumstances, the classification proposed in the show cause notice under heading 8703 33 92 is not applicable to Scorpio and Bolero. We further find that in the case of Bus, the correct classification would be under Chapter 8702, as applicable to the motor vehicles having capacity of 10 or more persons including driver. Admittedly, the Bus carries more than 10 persons and the classification proposed in the show cause notice under Chapter 8703 is not applicable to the Bus. In that circ .....

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n in Para 6, the Tribunal held as under:- "6. On a very careful consideration of the issue, we find that the show cause notice has actually invoked the liability to Service Tax payable on the service provided by Consulting Engineer service which is very clear from the show cause notice. The show cause notice has given the scope of the services of Consulting Engineer and it does not refer to any other service such as Chartered Accountant Service, Commercial Training or Coaching Service, etc. .....

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