TMI Blog2017 (10) TMI 1183X X X X Extracts X X X X X X X X Extracts X X X X ..... ot classifiable under 8708 but it is correctly classified under respective chapter heading as held by the adjudicating authority. - in respect of goods specified in third schedule activity such as packing or repacking of such goods in a unit container or labelling or re-labelling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer amounts to manufacture. In the facts of the present case, the goods as discussed above are falling under various chapter heading as proposed in the show-cause notice are covered under third schedule and the activity which is undisputedly carried out by the appellants are packing in unit con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er (AR) for the respondent ORDER Per : Ramesh Nair The fact of the case is that the appellant had imported various parts of motor vehicle. The said parts were subjected to process of packing repacking in unit container, labelling/ relabeling and affixing the brand name along with MRP on the product before clearing to their dealers/ customers. The case of the department is that the said activity carried out by appellant is covered under third schedule to Central Excise Act and also amounts to manufacture in terms of Section 2(f)(iii) of the Central Excise Act 1944 with effect from 01.03.2003. It was revealed that the appellant were affecting the clearance of the said goods without payment of duty. Therefore, after a detailed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty was very much known to the department, therefore there was no suppression of fact on the part of the appellant. Accordingly, the invocation of longer period for demanding duty is not maintainable. He further submits that the appellant had paid the entire duty along with interest before issuance of show-cause notice, therefore the case of the appellant is covered by Section 11A(2B), hence no penalty can be imposed. As regards the confiscation, he submits that the goods ordered to be confiscated are admittedly those goods which were cleared by the appellant and was not available for confiscation. He submits that as per the decision of Larger Bench in the case of Shiv Kripa Ispat Pvt. Ltd. - 2009 (235) ELT 623 (T-LB) which was aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imported and cleared under bill of entry wherein the classification has been decided finally. The adjudicating authority followed the same classification. Secondly, when the imported goods as such were only packed, labelled and affixed with the MRP the nature of the goods is not changed. Therefore, the classification under which the goods were cleared from the customs which were neither disputed by the revenue or assessee, attained finality. Accordingly, the classification adopted by the adjudicating authority on the repacked goods is in consonance with classification decided in case of imported goods, which cannot be disputed. In this regard, he placed reliance on the judgement of this Tribunal in the case of Nitin Patki - 2011 (273) ELT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g authority. As regards the issue whether the activity carried out by the appellant is amounting to manufacture, we refer to the relevant provision of Section 2(f) of the Central Excise Act which is reproduced below:- Section 2(f) - manufacture includes any process,- (i) incidental or ancillary to the completion of a manufactured product; and (ii) which is specified in relation to any goods in the Section or Chapter notes of [the First Schedule] to the Central Excise Tariff Act, 1985 (5 of 1986) as amounting to manufacture; or (iii) which, in relation to the goods specified in the Third Schedule, involves packing or repacking of such goods in a unit container or labeling or re-labelling of containers including the decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing one of manufacturing, clearance of the goods was liable to payment of duty. 8. As regards the submission of ld. Counsel that the demand is time barred as there is no suppression of fact, we find that though the transfer of spare parts to the spare part division on payment of duty may be known to the department from the records, but the activity of packing, repacking, declaration of MRP thereon was not known to the department which alone is the basis for making the product excisable. Therefore the activity of manufacture was not disclosed to the department by the appellant. Therefore there is a clear suppression of vital fact from the department. Accordingly, the proviso to Section 11A(1) is clearly invocable hence the demand for exte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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