9911796707
TMI Blog2023 (9) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... was also imposed on the appellant for the period from 01.04.2015 to 30.06.2017 by issuance of show-cause notice dated 26.06.2000. 2. The facts of the case are that the appellant is engaged in maintenance and repair services of Heavy Earth Moving Machinery ('HEMM'), which also entail supply of spare parts in respect of such HEMM. For the purpose of said activity, the Appellant entered into long term comprehensive maintenance and repair contracts ('MARC') with Tata Iron and Steel Company Ltd. ("TISCO") in relation to the heavy earth moving machineries (HEMM) like Rear Dump Truck, Dozers etc. procured by TISCO from M/s Caterpillar India Ltd. and M/s Caterpillar Singapore. 2.1 The appellant entered into a contract and as per the contract, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l sale price on any spare parts sold to TSL and (c) the appellant has falsely obtained registration as deemed manufacturer and paying duty of abated value, thus leading to surplus credit in CENVAT Credit account. Such credit is wrongly utilized by other unit of the Appellant for payment of service tax on works contract services. 2.3 In these set of facts, the show-cause notice was issued to the appellant alleging that the appellant is not engaged in the activity of manufacturing, therefore, they are not entitled to take cenvat credit. 2.4 The matter was adjudicated. The demand was confirmed by denying cenvat credit to the appellant and to impose equal amount of penalty. 2.5 Against the said order, the appellant is before us. 3. The ld.C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Act, 1944. 3.2 With regard to the observation regarding marketability of goods, it is submitted that the phrase 'to render the product marketable to the consumer' is only in respect of the activity of adoption of any other treatment on the goods and not in relation to any of the previously stated activities of packing or repacking in unit container, labelling/ relabelling etc. 3.3 It is his contention that the ld.Adjudicating Authority has observed that since TSL is only buyer of the appellant. Therefore, the appellant is not under any obligation to undertake any activity such as packing, re - labelling etc, so as to render the spare parts marketable. He, therefore, submits that it is a well settled position of law that te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(iii) of Central Excise Act, 1944, states that : "which, in relation to the goods specified in the Third Schedule, involves packing or re-packing 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." 8. We find that the parts in question are covered by Serial No.100A of the Third Schedule of the Central Excise Act, 1944. The said issue has been dealt by this Tribunal in the case of Mercedes Benz India Pvt. Ltd. (supra), wherein this Tribunal has observed as under : "7. From reading of the Section 2(f)(iii), it is seen that in respect of goods speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iling CVD paid on the imported goods, in that circumstances, we hold that the appellant is correctly taken the cenvat credit. 12. We also gone through the records as the appellant has registered with the Department and their activity is known to the Department, the appellant is also filing ER-I Returns regularly showing payment of duty and availing cenvat credit therein, in that circumstances, the extended period of limitation is not invokable in the facts and circumstances of the case. Therefore, on limitation also, the show-cause notice is not sustainable. 13. In view of the above discussions, we set aside the impugned order and allow the appeal with consequential relief, if any. ( Operative part of the order was pronounced in the open ..... X X X X Extracts X X X X X X X X Extracts X X X X
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