TMI Blog2019 (4) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... or respondent ORDER Per: Sanjiv Srivastava 1.1 These Appeals are directed against the order in appeal of the Commissioner (Appeals) as detailed in table 1, below: Table 1 Appeals initially listed on 11.10.2018 Appeal No Appellant Order in Amount Rs Appeal Date Original Date Duty Penalty E/531/11 Press Metal Industries Nashik 16.12.10 24.08.10 1016647 1016647 E/532/11 Nashik Metal Dust Nashik 16.12.10 26.08.10 42526 42526 E/533/11 Power Deal energy, Nashik 16.12.10 31.08.10 1462392 1462392 1.2 Initially these three matters were listed for hearing on 11.10.2018. On that date Learned Counsel for the Appellants stated that on the same issue nineteen more appeals are pending before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T Matrix Entp 10000 E/783/2012 Aksai Controls, - 2 Mumbai 29.01.12 50534 50534 E/1108/2012 Hoshnar Engineers, Mumbai 09.05.12 408293 408293 E/1109/2012 L T Hoshnar 100000 2.1 In all the cases under consideration appellants were manufacturing excisable goods like Sheet Metal parts, fabricated parts and control panel board etc. They have been issued show cause notices, alleging that- a. They manufactured the goods as per the drawings and designs supplied by their customers and their main customers were L T Mumbai, Ahmednagar, M/s A B B Ltd Nashik, M/s C G Lucy Ltd, M/s Crompton Greaves Ltd and M/s Schneeider Electric (I) Ltd. b. M/s L T had supplied the drawings and designs of the components to be manufactured/ fabricated fee of cost. c. Appellants did not include the money value of the said design and drawings supplied free of cost in the assessable value of final products sold to M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng and design but were only instruction sheets. He argued relying on various case laws to state that- i. Drawing and design charges supplied free of cost would not be included in the assessable value {Lawkim Ltd [2007 (218) ELT 142 (T)], Ghatge Patil Inds Ltd [2015 (320) ELT 646 (T-MUM)], Menon and Menon Ltd [2006 (195) ELT 38 (T)], Menon Menon Ltd [2015 (325) ELT 10 (SC)], Luna Agro Industries Pvt Ltd. [2009 (242) ELT 130 (T-Mum)], Bharat Forge Ltd. {2000 (122 ELT 169 (T)], Automotive Stampings Assemblies Ltd [2009 (247 ELT 712 (T-Ahd)]. ii. He also relied on the various decisions to hold that these cases are revenue neutral and hence extended period of limitation cannot be invoked in the present cases {P R Rolloing Mills Pvt Ltd [2010 (249) ELT 232 (T-Bang)], Coca Cola India Pvt Ltd. [2007 (213) ELT 490 (SC)], SRF Ltd {2007 (220) ELT 201 (T)]} iii. Finally he submitted that relying on the decision of the Apex Court in case of International Auto [2005 (183) ELT 239 (SC)], that in this case goods have been cleared without payment of duty as job work in terms of Rule 4(5) of CENVAT Credit Rules, 2004 and thus they would not be required to pay any duty at all. 3.3 Lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.3 From the perusal of the said documents it is quite evident that L T who has supplied these, documents free of cost to the Appellants, term them as drawing and design as is evident from the specific declaration made on the face of each sheet, THIS DRAWING AND DESIGN IS THE PROPERTY OF LARSEN TUBRO LIMITED AND MUST NOPT BE COPIED OR LENT WITHOUT THEIR PERMISSION IN WRITING. 4.4 When the supplier of these sheets term them as drawing and design and consider them as their property then the submission of the counsel to the effect that these are not drawing and designs do not carry any meaning. Further the issue is not whether these are drawing or design but is whether these have certain money value that should be added to the transaction value for determination of the assessable value for payment of Central Excise duty. 4.5 Rule 6 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 read as follows: Where the excisable goods are sold in the circumstances specified in clause (a) of sub section (1) of section 4 of the Act except the circumstance where the price is not the sole consideration for sale, the value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) ELT 646 (T-MUM)], Menon and Menon Ltd [2006 (195) ELT 38 (T)], Menon Menon Ltd [2015 (325) ELT 10 (SC)], Luna Agro Industries Pvt Ltd. [2009 (242) ELT 130 (T-Mum)], Bharat Forge Ltd. {2000 (122 ELT 169 (T)]. 4.8 In case of SWIL Ltd {2001 (128) ELT 510 (T-Cal)], even in respect of the Central excise Valuation Rules, 1975, the Calcutta Bench (in which one of us was the Member) held as follows: 6 The appellants have also strongly contended that the. normal assessable value in terms of Section 4(1)(a), being available, the same should be adopted and there was no justification for invoking the provisions of Rule 5 of the Central Excise Valuation Rules, 1975. We find that the similar contention was also raised before the Larger Bench which finds dealing in Para 7 of the said order. While rejecting the contention raised on behalf of the appellants in that case, the Tribunal has observed that when the price of the finished goods has been fixed between appellants and the customer and the moulds have to be supplied free of charge by the customer, it cannot be said that the price so fixed is the sole consideration for the sale of the finished products, if the mould was not supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used for the manufacture of three numbers of Lead Annealing Bath, in which case, only 1/3 value of the said drawings being relatable to Lead Annealing Bath would be required to be added in the total value of the product in question. With these observations while rejecting the appeal on merits, we remand the matter to the original adjudicating authority for re-calculation of demand of duty against the appellants. 4.9 Similarly in case of Mutha Engineering Pvt Ltd tribunal held in favour of addition of the said charges. For the period prior to the 1st July 2000 in view of divergent views being taken by the different bench of the tribunal matter was finally resolved by the larger bench in case of Mutual Industries [2000 (117) ELT 578 (T-LB)] holding in favour of addition of free cost supplies in the price to determine the assessable value. 7. Section 4 of the Central Excises and Salt Act, 1944 provides for finding out the value of excisable goods for purposes of charging of duty of excise. As per Section 4(1)(a) the value for charging of duty of excise should be the normal price, if the price is the sole consideration for the sale. Further, Rule 5 of Central Excise (Val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r order. In paragraph 48, the Order-in-Original only reciles as to how the assessee could not substantiate the claim that the mould development charges were amortised. Therefore, it relied upon the inquiries and investigations and the statements of the executives and officials of the assessees and M/s. TELCO recorded during the course of the same. However, we do not find anything in the Order-in- Original barring a statement that the assessee have not amortised the costs of moulds recorded from M/s. TELCO, and this itself tantamounts to misrepresentation as misstatement of facts. Beyond such a finding, we do not have anything on record which would enable us to conclude that the authorities were satisfied that this was a wilful misstatement of facts or suppression. That alone would have justified imposition of penalty. The penalty provisions may be termed as mandatory, but the imposition itself has to precede the satisfaction in terms of Section 11AC. That was not recorded in the Order-in- Original. 4.10 From the reading of all the said decisions it is quite evident that the money value of free supply material was to be included while determining the assessable value for payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant advanced one more argument that entire transaction between L T and them could have been under job work basis under Rule 4(5) of CCR, 2004 and then they would not have been required to pay duty. They have also cited two decisions in support of their say. I observe that once appellant choose to pay duty instead of following job work procedure, they are required to pay duty on correct assessable value. By paying duty by undervaluing the goods, the appellant cannot absolve their responsibility of determining correct assessable value taking shelter that no duty was chargeable had they followed job work procedure. However, fact is that the appellant could not follow job work procedure as drawing/designs are not input but intangible property which could be sent under Rule 4(5) of CCR, 2004 and appellant did not produce any evidence that the inputs required for manufacture of subassemblies are supplied by M/s. L T Ltd. and not procured by the appellant themselves. They only stated that sub-assemblies manufactured by them are intermediate goods for L T, who used the said subassemblies to manufacture their final product. I cannot understand as to how sub-assemblies manufactured by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in 2005 (179) E.L.T. 20 (S.C.) and CCE, Pune v. Coca-Cola India Pvt. Ltd. reported in 2007 (213) E.L.T. 490 (S.C.). 7.1 In the case of CCE, Jamshedpur v. Jamshedpur Beverages (supra), the grievance of the revenue was that M/s. Jamshedpur Beverages had wrongly availed Modvat credit of ₹ 26,77,320/- and the contention of the party was that the excise duty paid and the Modvat credit were identical and the consequence of payment of excise duty after availing Modvat was revenue neutral and in this background the revenue s appeal was dismissed leaving the question of law open. 7.2 In the case of Textile Corporation Marathwada Ltd. (supra), the issue involved was as to whether M/s. Textile Corporation Marathwada Ltd. were liable to pay excise duty at each stage - bleaching, dyeing, printing, mercerising of textile fabrics. The Hon ble Supreme Court in this case dismissed the department s appeal on the ground that since the assessee would be entitled to the Modvat credit of duty paid, if the duty is paid at each stage of manufacturing and the entire exercise would be revenue neutral. The Hon ble Supreme Court while dismissing the department s SLP also that observed ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an exemption Notification under Section 5A. Such an exemption Notification No. 52/02-C.E. was issued only on 17-10-02 without any retrospective effect. Since this notification has not been given retrospective effect, its benefit cannot be given in respect of the clearances for captive consumption prior to 17-10-02. We also find that since in this case, the NCCD had not been paid at the time of clearance of goods for captive consumption and on account of non-payment of NCCD, in addition to the NCCD, the interest on the same under Section 11AB is also chargeable and in the event of payment of NCCD, the Cenvat credit would be available only of the NCCD paid, not of the interest on the NCCD under Section 11AB, this cannot be said to be a revenue neutral situation. 5.5 The issue of revenue neutrality has been considered by a larger bench of Tribunal is case of Jay Yushin [2000 (119) ELT 718 (T-LB)] and it has been held- 10 . In terms of Section 4(1)(a) of the Central Excise Act, the assessable value of the final product on which excise duty is to be paid at the time of removal shall be based on the cost of raw material, incidental charges, taxes, freight and the elem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion of the appellants that they were at the relevant period entitled to operate under the Exemption Notification No. 214/86 and thereby clear the goods without payment of duty and therefore there cannot be a charge of intention to evade duty, ld. JDR submitted that the appellants were admittedly availing the facility of modvat credit under Rules 57A and 57Q at the relevant time and therefore there was no question of their simultaneously availing the benefit of Notfn. No. 214/86. Further, in the absence of any evidence to show that MUL had given an undertaking in terms of Para 2 of the said notification the said plea was merely hypothetical and not based on facts. As regards the Tribunal decisions relied on by the appellants holding that where there was an alternate option available to the assessee enabling them to clear the goods duty free by virtue of exemption notifications or availability of Modvat credit on the duty paid, resulting in a Revenue-neutral position ld. JDR pointed out that in none of the cases cited the assessee had taken credit which remained with the assessee for utilising it towards payment of duty on their various other finished products. He submitted that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utstanding duty liability exists at the time of issuing the SCN, we are of the view that a careful reading of Section 11A(1) does not allow such a construction to be put on the said provision. Inasmuch as Section 11A(1) gives power to the Central Excise Officer to serve a notice within a period of six months from the 'relevant date from the date when non-levy/non-payment or short levy/short payment has occurred, we are of the view that so long as it is not in doubt that there has been an occurrance of non-levy/short levy/ or non-payment/short payment on the relevant date the pre-conditions for issuance of SCN under Section 11A(1) are fully met and notice validly issued. In the instant case there is no dispute that clearance of excisable goods on short payment of duty had taken place. The fact that the differential duty was subsequently debited (albeit voluntarily) by the assessee before the issue of SCN will not debar the issuance of SCN in relation to the short payment occurring on the relevant date. Further, to the extent the appellants had stated in their price list declaration that no extra consideration had been received from the suppliers of the components despite the kn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention is drawn to the impugned judgment and order passed by CEGAT, West Regional Bench at Mumbai on 29-9-2000. By the said judgment, the two-judges Bench of the Tribunal, after referring to the Larger Bench decision in the case of Jay Yushin Ltd. v. Commissioner of Central Excise, New Delhi, 2000 (119) E.L.T. 718 held that the finding of the Commissioner that Revenue neutrality is not established by the appellants is factually incorrect and, therefore, the order of the Commissioner is required to be set aside. By the said order, the Tribunal held that since it is a case resulting in Revenue neutral situation, therefore, the extended period of limitation is not applicable and the entire demand is barred by limitation. Out attention is also drawn to the decision of the Larger Bench, a copy of which is annexed to the paper book. In the operative portion of the judgment, the Larger Bench of the Tribunal has answered the reference in the following manner :- (a) Revenue neutrality being a question of fact, the same is to be established in the facts of each case and not merely by showing the availability of an alternate scheme; (b) Where the Scheme opted for by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduction or manufacture on his own account; [Emphasis supplied] The definition of the manufacturer says that any person who is engaged in any of the activity specified in clause (i) to (iii) of Section 2(f) of the Act would be called as manufacturer. It is the manufacturer who under Central Excise Act and Rules is liable to pay duty unless otherwise exempted. The ownership of the goods is immaterial. Any person who undertakes the above activities being manufacturer, a jobworker engaged in any of the said activity is a manufacturer and is thus liable to pay duty on the goods manufactured by him unless otherwise exempted. 7.2 7.3 Cenvat Credit Rules, 2000 and 2002 Rules were framed under Section 37 of the Central Excise Act and Finance Act, 1994. That does not vest any power to grant exemption from payment of duty. Thus the applicability of Rule 4 (5) and (6) to grant exemption to the assessee i.e job-worker from payment of duty is inconceivable. 7.4 . In terms of the above notification, it transpires that it is only in respect of goods covered by Para (1) and Para (2) of the Notification, manufactured by the jobworker, are exempted only if t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-worker may, by an order, which shall be valid for a financial year, in respect of removal of such input or partially processed input, and subject to such conditions as he may impose in the interest of revenue including the manner in which duty, if leviable, is to be paid, allow final products to be cleared from the premises of the job-worker. Perusal of the above sub rules reveal that Rule 4 (5) (a) is concerned only with permitting removal of inputs to the job-worker by the Principal manufacturer who has availed cenvat credit on such inputs. Pertinently, Rule 4 of the Cenvat Credit Rules is concerned with the conditions under which a manufacturer is allowed to avail cenvat credit. Rule 4 (5) (a), not cast any liability of duty upon the principal manufacturer who has sent the inputs for job-work other than the condition that in case of non receipt of goods within the stipulated period he shall be liable to reverse the cenvat credit availed on such inputs. The rule is confined to the scope of cenvat credit but has no relation with manufacture, manufacturer and payment of duty on the manufactured goods. 7.5 Similarly Rule 4 (6) is concerned with the condition under whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho has to pay the duty. Following the procedure and conditions of the Notification(supra) only by the Principal manufacturer, the jobworker would be saved from payment of duty on goods manufactured by him. 7.8 In the case under reference, the facts of non payment of duty on final products by the Principal manufacturer is not disputed. The goods received from the jobworker were not used in the manufacture of dutiable final products but in goods on which no duty was paid. In such case when the Principal manufacture did not intend to pay duty on the final products, the jobworker who is manufacturer of intermediate goods is liable to pay duty. Non compliance of Notification No. 214/86 CE dt. 25.03.1986 by the Principal manufacture has resulted into duty liability upon the jobworker. Moreover, it is admitted by the appellant (job worker) that the inputs were not sent by the principal manufacturer under Notification No.214/86-CE. If the contention of the Appellant is accepted it would lead to the situation where neither the Principal manufacturer nor the jobworker would pay duty, which has not been legislated. 7.9 The Appellant has relied upon the Tribunals order in case of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e duty payment of goods. 7.11 Rule 4 (6) is a facility to the Principal manufacturer to clear the goods directly from the premises of jobworker after payment of duty. Notably it is not the case of the appellant that the Principal manufacturer paid duty at anytime as the goods manufactured by him were exempted from duty. Thus the liability for payment of duty on such intermediate goods manufactured by the Jobworker is on jobworker only. 7.12 The Tribunal Order in case of Vandana Dyeing Pvt. Ltd. Vs. CCE, Mumbai 2014 (307) ELT 528 (TRI) = 2014- TIOL-1364-CESTAT-MUM and Mukesh industries Ltd. Vs. CCE, Ahmedabad 2009 (248) ELT 203 (TRI) were rendered considering Rule 4 (5) (a) of Cenvat Credit Rules, 2001 and 2002 Rules as pari materia to 57 F (4) of erstwhile Central Excise Rules, 1944. However in our considered view Rule 57F (4) provided for payment of duty by the Principal manufacturer whereas Rule 4 (5) (a) only provides sending of cenvat availed inputs for jobwork and return of same to the Principal manufacturer implying that the Principal Manufacturer shall pay duty on the same. Accordingly those judgments are of no help to the Appellant. 7.13 Even the Tribunals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held as under : Duty liability - Job worker - Respondents receiving grey MMF and knitted or crocheted fabrics from principal manufacturer under the cover of challans issued under Rule 4(5)(a) of Cenvat Credit Rules, 2001 and after completion of job work the goods stand returned to the principal manufacturer - Rule 57F(3) of erstwhile Central Excise Rules, 1944 and Rule 4(5)(a) ibid being independent provisions, fact that goods were not specified in the Notification No. 214/86-C.E. will not make a difference - No duty liability can be fastened upon the job-worker - Section 3 of Central Excise Act, 1944. [para 4]. Similarly in the case of Dhana Singh Synthetics Pvt. Ltd. v. CCE, (supra) it was held as under : Demand - Job worker - Fabric received by job worker accompanied with Challans issued under Rule 57F(5) of erstwhile Central Excise Rules, 1944 corresponding to Rule 4(5)(a) of Cenvat Credit Rules, 2002/2004, which returned after processing to principal manufacturer under said Challans without payment of excise duty - Demand raised as processed fabric not exempt under Notification No. 214/86-C.E. - HELD : Inputs received under Central Excise Challans and not und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the jobworker is available to the Principal manufacturer when the jobworker could have availed exemption under Notification No. 214/ 86 CE. The Tribunal rightly held that if the jobworker has paid duty even though he was eligible to avail exemption under the Notification, the Principal manufacturer was eligible for the credit there of as he was liable to pay duty on clearance of the final goods. Tribunal held that had the Notification No. 214/86 not issued, even under Rule 57F (2) the jobworker had to pay duty. Thus it follows that it is only by virtue of notification(supra) the goods manufactured at Joboworkers end are exempted only if the same or the final product in which such intermediate goods are used are liable for duty at the end of the Principal manufacturer which is absent in the present reference. 7.17 In case of Collector Vs. Bright Steel Mac Fabrics 1994 (69) E.L.T. 276 (Tribunal) as upheld by the Hon ble Apex Court in case of CCE Vs. Bright Steel Mac Fabrics 1997 (94) ELT A145 SC, the Tribunal has rightly held that Rule 57F (2) does not envisage return of inputs after completion of processing resulting in a semi-finished goods or intermediate goods without pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of M/s Kartar Rolling Mills Vs. Commissioner of Central Excise, New Delhi 2006 (197) ELT 151 (SC) = 2006-TIOL-46-SC-CX held that the assessee jobworker i.e the Appellant failed to bring any evidence on record to prove that the supplier of raw material had supplied the materials to them under the provisions of Notification No. 214/86 and thus the duty demand against the assessee undertaking jobwork was upheld. The ratio laid down in the said judgment is squarely applicable to the present reference. 7.20 In case of Commissioner Vs. Span Heat Transfer Equip. Mfrs. P. Ltd. 2001 (135) ELT 861 Tribunal held that the Notification 214/ 86 CE envisages the duty payment by the supplier of the goods for jobwork if he undertakes to pay the same. In the normal course of business, it is the jobworker being manufacturer is liable to pay duty. We are in agreement with such views of the Tribunal as in absence of undertaking by the Principal manufacturer to discharge duty liability on the Jobworked goods, it is the manufacturer of goods i.e Jobworker who is liable to pay duty. The order of Tribunal in case of M/s Jinabakul Forge Pvt. Ltd. Vs. Commissioner 1997 (93) ELT 373 (TRI) relied u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to time by fluctuations between 10% to 36% is as determined by the Central Government by notification in the official gazette from time to time. There would be discretion, if at all the same is incorporated in such notification in the gazette by which rates of interest chargeable Under Section 11AB are declared. The second aspect would be whether there is any discretion not to charge the interest Under Section 11AB at all and we are afraid, language of Section 11AB is unambiguous. The person, who is liable to pay duty short levied / short paid / non levied / unpaid etc., is liable to pay interest at the rate as may be determined by the Central Government from time to time. This is evident from the opening part of Sub-section (1) of Section 11, which runs thus: Where any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded, the person, who is liable to pay duty as determined under Sub-section (2) or has paid the duty under Sub-section (2B) of Section 11A, shall in addition to the duty be liable to pay interest at such rate.... The terminal part in the quotation above, which is couched with the words shall and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying penalty below the prescribed minimum. Before the Division Bench, stand of the revenue was that said section should be read as penalty for statutory offence and the authority imposing penalty has no discretion in the matter of imposition of penalty and the adjudicating authority in such cases was duty bound to impose penalty equal to the duties so determined. The assessee on the other hand referred to Section 271(1)(c) of the Income Tax Act, 1961 (in short the IT Act ) taking the stand that Section 11AC of the Act is identically worded and in a given case it was open to the assessing officer not to impose any penalty. The Division Bench made reference to Rule 96ZQ and Rule 96ZO of the Central Excise Rules, 1944 (in short the Rules ) and a decision of this Court in Chairman, SEBI v. Shriram Mutual Fund Anr. [2006 (5) SCC 361] and was of the view that the basic scheme for imposition of penalty under section 271(1)(c) of IT Act, Section 11AC of the Act and Rule 96ZQ(5) of the Rules is common. According to the Division Bench the correct position in law was laid down in Chairman, SEBI s case (supra) and not in Dilip Shroff s case (supra). Therefore, the matter was referred to a l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e limit or imposition of penalty, that is the maximum fixed or the quantum has to be between two limits fixed. In the cases at hand, there is no variable and, therefore, no discretion. It is pointed out that prior to insertion of Section 11AC, Rule 173Q was in vogue in which no mens rea was provided for. It only stated which he knows or has reason to believe . The said clause referred to wilful action. According to learned counsel what was inferentially provided in some respects in Rule 173Q, now stands explicitly provided in Section 11AC. Where the outer limit of penalty is fixed and the statute provides that it should not exceed a particular limit, that itself indicates scope for discretion but that is not the case here. 23. The decision in Dharamendra Textile must, therefore, be understood to mean that though the application of Section 11AC would depend upon the existence or otherwise of the conditions expressly stated in the section, once the section is applicable in a case the concerned authority would have no discretion in quantifying the amount and penalty must be imposed equal to the duty determined under sub-section (2) of Section 11A. That is what Dharamendra Text ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents as drawings given to the vendors, it has to be held as the same are designs and drawings, the value of which is required to be added in the assessable value. However, on going through the same, I find that the same are in the nature of drawings, which are primarily the instructions given by the customers. A careful reading of the purpose for which the same stand supplied reveals that the same are primarily in the nature of instructions for the purpose of showing the lay out of the various components etc. while manufacturing the final products. The same cannot be, according to me, considered as designs. Admittedly the products manufactured by the appellant for their customers are highly technical products and required correct placement of the various items. As such the instructions which are in the shape of requirements of the customers cannot be held to be designs. The same are in the nature of a laid out plan, according to which the various products are required to be manufacture. Giving a hypothetical example if an office room is to be interior decorated, the plan showing the placement of various items in the room is required and cannot be considered to be a design acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant cannot be held to be carrying any money value so as to add the same in the assessable value of the product. Accordingly I hold that the value of the said instructions was not required to be added in the assessable value of the final product. 15. Even considering that the said documents were of any money value, the same could still not be added in the assessable value of the final product in terms of the Hon ble Supreme Court s decision in the case of International Auto Ltd. v. C.C.E., Bihar [2005 (183) E.L.T. 239 (S.C.)], vide which the Tribunal s order was reversed. To the same effect is the Tribunal s decision in the case of Lawkim Ltd. v. Commissioner of C.Ex., Pune-II [2007 (218) E.L.T. 142 (Tri.-Mumbai)], Ghatge Patil Indus. Ltd. v. Commissioner of Central Excise, Pune [2015 (320) E.L.T. 646 (Tri.- Mumbai)], which stands upheld by Hon ble Supreme Court in the case of Commissioner v. Ghatge Patil Indus. Ltd. [2015 (322) E.L.T. A28 (S.C.)]. Further the Tribunal s decision in the case of Menon Menon Ltd. v. Commissioner of C.Ex. Cus., Pune-II [2006 (195) E.L.T. 38 (Tri.-Mumbai)] upheld by Hon ble Supreme Court in the case of Commissioner of C.Ex. Cus., Pune v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods on job-work basis for their customers. No doubt that the appellants have chosen to pay duty on the said final product with the availability of credit of duty so paid to their customers, but if they would have followed the option for manufacture of goods on job-work basis, no duty was required to be paid by them. Merely because the appellants have not adopted the said procedure to manufacture the goods on job-work basis, will not lead to an inevitable conclusion that the said facility was not available to them and having not followed, they have to be crucified. In case they would have chosen to adopt the duty free job-work manufacture procedure, there would not have been any requirement on their part to pay duty and no dispute on the determination of assessable value would have arisen, thus leading to no confirmation of any duty demand against them. Adoption of such legal plea by the appellants even after initiation of proceedings against them is appropriate in as much a legal ground like the benefit of notification can always be contended by the assessee at any stage of the proceedings. In such view of the matter also the confirmation of demand of duty against them is not just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... points of difference emerge. (i) As to whether the documents supplied by the appellants customers have to be treated as design and drawings, as held by Member(Technical) or the same are in the nature of instructions as held by Member(Judicial) ? (ii) Whether the filing of the said documents has to be added in the assessable value of the final product manufactured by the appellants or not ? (iii) As to whether the various judicial decisions on the disputed issue having been given by the higher courts would be applicable to the facts of the present case or the same has to be held as inapplicable on account of section 4 w.e.f. 01.07.2000 ? (iv) As to whether the entire situation has to be considered as revenue neutral so as to set aside the demand, as observed by Member(Judicial) or the revenue neutrality plea of the assessee has to be rejected as held by Member(Technical) ? (v) Whether the issue of applicability of Notification No.214/86 is required to be examined or not, even if the appellant was not working under the said Notification ? (vi) Whether the fact of availability of credit to the appellants customers, who are principal manufacturers has to be consider ..... X X X X Extracts X X X X X X X X Extracts X X X X
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