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TMI Blog2023 (10) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Excise Tariff Act, 1985 and on the basis of intelligence and consequent investigation initiated by DGCEI, Bangalore against the appellant, it has been alleged that though, besides manufacturing they were also engaged in the activity of repacking and relabelling of imported and indigenously procured spare parts of Dumpers (Mechanical Drive and Electrical Drive), Water Sprinklers and Motor Graders at their marketing division. The said activity in terms of Section 2(f) of the Central Excise Act, 1944, read with Sl. No 100 of Third Schedule of the Central Excise Tariff Act, 1985 result into "manufacture" and its value for the purpose of excise duty to be determined as per Section 4A after allowing an abatement of 33.5% on the maximum retail price as per Notification No.11/2006 CE (NT) dated 29.5.2006, but it was cleared/sold to various customers without payment of duty. Further, alleging that the appellant had failed to discharge total duty of Rs.62,10,81,326/- between January 2008 to March 2011, a show cause notice was issued to them on 05.4.2013 demanding the said duty with interest and proposal for penalty on the company and personal penalty on co-noticees. Later, by a cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the Ministry's Circular No.262/15/86-CX.8 dated 14.7.1987 submitted that Automobile Cess in the said Circular was clarified to be not leviable on the earthmoving machinery including Dumpers. Therefore, the spare parts of the Dumpers etc. cleared by the appellant fall outside the scope of the term 'automobile' and therefore, the demand for the period 01.3.2008 to 26.02.2010 cannot be sustained and liable to be set aside. In support of his contention, that 'dumpers' are not automobiles the learned advocate referred to the decisions of the Larger Bench of the Tribunal in the case of M/s. Action Construction Equipment Ltd. vs. CCE, Delhi-IV, Order dated 6.6.2023. It is his submission that the decision of the Larger Bench is squarely applicable to the present case in all force inasmuch as the spare parts of the Dumpers, Tatra Trucks, Tatra Engines cleared by the appellant are earthmoving machines which fall outside the meaning and scope of the term 'automobile' mentioned in Sl. No.100 of the Third Schedule of the Central Excise Act, 1944 as it existed prior to 27.02.2010. 2.4 Further, the learned advocate has submitted that the demand issued invoking extended period of limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Hydra Cranes, Hydraulic Excavator Loader (Backhoe Loaders), Hydraulic Loader (Wheel Loading Shovel/Shovel Loaders, Road Rollers (Compactors) as it has been specifically held at Para 89 of the said Order that the earth moving machines are not 'automobile'. Comparing to the products in question, the learned Authorised Representative has contended that Dumpers, Motor Graders have not been discussed therein in deciding whether the goods referred are 'automobiles' or otherwise. 3.1 Further advancing his arguments, he has referred to the judgment of the Tribunal in the case of M/s. Komatsu India Pvt. Ltd. vs. CCE, Nagpur: 2017 (345) E.L.T. 256 (Tri.-Mumbai) wherein the Tribunal considered whether the parts of dumpers and other machineries imported, packed/repacked in unit containers affixed with MRP could be subjected to Section 2(f)(iii) of Central Excise Act, 1944. It is his contention that the facts of the said case are squarely applicable to the facts of the present case. Therefore, the demand requires to be confirmed even for extended period of limitation following the said judgment of this Tribunal. 3.2 Distinguishing the judgment of this Tribunal in their own case, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Third Schedule, involves 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,] and the word "manufacturer" shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in their production or manufacture on his own account;] Serial No.100 of Third Schedule of the Central Excise Tariff Act, 1985 read as under during the relevant period. From 01.06.2006 to 26.02.2010 Sl. No. Heading, Sub-Heading or Tariff Item Description of goods 1 2 3 100 Any Chapter Parts, Components and assemblies of automobiles From 27.02.2010 to 31.03.2013 Sl. No. Heading, Sub-Heading or Tariff Item Description of goods 1 2 3 100 Any Chapter Parts, Components and assemblies of vehicles (including chassis fitted with engines) falling under Chapter 87 excluding vehicles falling under headings 8712, 8713, 8715 and 8716 Sl. No.100A has been inserted into the Third ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Circulars issued from time to time. Serial No.100A inserted in the Third Schedule w.e.f 29.04.2010 is prospective and likewise Serial No.109 inserted in Notification No.49/2008 by Notification No.19/2010 dated 29.04.2010 issued under Section 4A of the Central Excise Act, is prospective in nature. 90. The reference made to the Larger Bench is, accordingly, answered in the following manner: (i) As the word 'automobile' has not been defined in the Central Excise Act, the Central Excise Tariff Act or the Notifications issued by the Central Government, it would be permissible to refer to the dictionaries to find out the general senses in which the word is understood in common parlance and it will not be appropriate to refer to the definition of the word 'automobile' occurring in the Air (Prevention and Control of Pollution) Act, 1981 or the Motor Vehicles Act, 1988; and (ii) The amendment made in the Third Schedule to the Central Excise Act by Finance Act, 2011 w.e.f 29.04.2010 by adding serial No.100A to the Third Schedule is prospective in nature." 5.5 Distinguishing the said ratio, the Revenue has argued that the equipment considered in the said judgment are different and hen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, this Tribunal for their Mysore Division reported as M/s. BEML & Ors. vs. CCE: 2014 (8) TMI 135 (CESTAT-BANG.) held that extended period of limitation cannot be made applicable for recovery of duty on the basis of retrospective legislation. Distinguishing the said judgment, on the other hand, learned Authorised Representative for the Revenue has submitted that the activity of relabelling and repacking in the said Mysore Division commenced from April 2010, whereas in the present case, the said activity was started in the year 2006, therefore, the appellant was aware of the fact that such activity attracts excise duty. In confirming the demand for the period, the learned Commissioner has observed that since the appellant have been operating for more than six years, under the present era of self-assessment procedure, the department expects the assessee to comply with the requirement of law voluntarily. It is his finding that non-compliance with the provisions of various Rules of Central Excise Rules, 2002 resulted in contravention of the same with intention to evade payment of duty. Following the Larger Bench judgement, We have observed that for the period upto Feb 2010, sr. no. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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