TMI Blog2023 (12) TMI 1001X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal dismissed earlier for non-prosecution vide order dt. 20.08.2019 is allowed and the said order is recalled and appeal is restored to its original number. Also, the miscellaneous application seeking change of cause title from M/s. Sree Lakshmi Forge Engineers Ltd., to M/s. Kems Forgings Ltd. on the basis of the certificate issued by the Registrar of Companies dated 14.07.2011 is allowed and the appellant s cause title is changed from M/s. Sree Lakshmi Forge Engineers Ltd., to M/s. Kems Forgings Ltd. Registry is directed to make necessary changes regarding cause title and address in the records as well as database. Short payment of duty - non-inclusion of value of the said moulds, dies charged to respective buyers of the forgings separately in the assessable value - Section 4 of the Central Excise Act, 1944 - HELD THAT:- Initially, in the demand notice, the entire cost of the dies / jig fixtures proposed to be included assuming that the same have been used in the manufacture of forgings and its cost has been recovered from the customers. However, no evidence has been placed in this regard in spite of two rounds of litigation before the adjudicating authority. The l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e filed one for changing the cause title and one for restoration of the appeal dismissed for non-prosecution. First, we take up the miscellaneous application for restoration of the appeal dismissed by this Tribunal on 20/08/2019 for non-appearance and non-prosecution of the appeal by the appellant. 2. Learned Consultant submits that the appellant has not received the intimation of hearing of the case, since there has been a change of address after the unit has been merged with M/s. Kems Forgings Limited in the year 2011. He submits that the appellant M/s. Sree Lakshmi Industrial Forge and Engineers Ltd. admittedly not approached this Tribunal for change of cause title as well as the change of address. He submits that it was a mistake on their part in not approaching the Tribunal resulting to non-receipt of the intimation of hearing, when the appeal was taken up by this Tribunal in the year 2019. 3. In support of the second miscellaneous application, he submits that the cause title of the appellant needs to be changed in view of the certificate enclosed with miscellaneous application issued by the Registrar of Companies, Karnataka. 4. Opposing the applications, the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s looking after, supposed to initiate proper action intimating the merger and change of cause title and also the address of the company with whom merger effected. 7. We find that for the mistake of the counsel in not intimating the Tribunal about the change of name and address on merger with M/s. Kems Forgings Limited, the appellant cannot be penalised. The case laws cited by the learned AR for the Revenue has been distinguished by the learned consultant and in our view, the circumstances therein are different from the present one, hence not applicable. Considering the submissions of the appellant supported by affidavit filed by the Managing Director of the company, in the interest of justice, the miscellaneous application seeking restoration of the appeal dismissed earlier for non-prosecution vide order dt. 20.08.2019 is allowed and the said order is recalled and appeal is restored to its original number. Also, the miscellaneous application seeking change of cause title from M/s. Sree Lakshmi Forge Engineers Ltd., to M/s. Kems Forgings Ltd. on the basis of the certificate issued by the Registrar of Companies dated 14.07.2011 is allowed and the appellant s cause title is chang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o manufacture the die blocks; they only manufacture the die impression, which is sunk into the dies block. This impression is used for the forgings of the products to be supplied to the customers. These dies blocks are reusable and as and when the impressions/inserts worn out, another insert or impression is used for new job. They have not recovered the cost of the dies block but cost of the impression from the customers not separately but including in the cost, which is consumable. In most of the cases, if size of the order is large and also from regular customers, they do not recover any charges and the appellant themselves bear the said cost. Thus, there is no additional consideration received from the buyers. In support, he has referred to the judgment of the Tribunal in the cases of Flex Industries Vs. CCE [1997 (91) ELT 120 (T) and Mutual Industries Ltd. Vs. CCE [2000(117) ELT 578 (T-LB)]. Further he has submitted that the tools / dies cost must be amortised over the life period and duty cannot be recovered by adding the total cost of the dies to the transaction value. He has submitted that the dies blocks are their own capital asset; hence it is subjected to depreciation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the value of dies / jigs etc. in the transaction value of the forgings is recoverable with interest and ii. Whether cenvat credit of Rs.5,56,999/- is admissible to the appellant. 13. As far as the first issue is concerned, it is the contention of the learned consultant for the appellant that they have not received any cost from the purchaser of the forgings on account of moulds / dies etc. but the die blocks are their property and accounted as their capital assets. The inserts, which are fixed to the dies gets exhausted/consumed during the course of manufacture of forgings, whose cost is borne by them; therefore the direction of the learned Commissioner (Appeals) to calculate the amortised cost of dies/blocks and redetermine the assessable value is incorrect. Also, the grievance of the appellant is that even though they have been claiming through evidences before the authorities below that the die blocks belong to them and the die impression/inserts got exhausted but the same was not considered. Hence, the order of the lower authorities is bad in law. 14. We find force in the contention of the learned Consultant for the appellant. Initially, in the demand notice, the e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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