TMI Blog2000 (5) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. The collector under the impugned Order dated 23-3-1993, confirmed the demand of duty Rs. 3,00,94.43 and imposed a penalty of Rs. 30,000/-, holding that the benefit of Notification No. 144/88 was not available as the condition specified in the Notification that the transmission and allied assemblies were intended to be supplied to Ordnance factory, Medak for the manufacture of Infantry Combat Vehicle was not satisfied as they had supplied the goods to M/s. BEML. He relied upon the decision in Andhra Pradesh Lightings v. C.C.E., 1988 (33) E.L.T. 627 and Graver Weil (I) v. CCE, 1986 (25) E.L.T. 338 (T). The Collector also held that extended period of limitation is invokable penalty is imposable as the Appellants had neither adopted any procedure for the receipt of raw materials and return of the finished goods nor had they paid any duty. The Collector included the value of goods manufactured and cleared on job basis to M/s. NSTL, M/s. Galaxy Switch Gears and Allied Industries, M/s. Southern Electronics, M/s. Kirloskar Electric Company, M/s. Vindtek, M/s. Arvind Foundry, M/s. BEML, KGF, R.D. Pune, M/s. Shivamani Industries M/s. Tata Electronics Development Services, M/s. Mach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the similar views were expressed by the Tribunal in the case of Indian Cable Industries v. C.C.E., Madras, 1994 (74) E.L.T. 708 (T) wherein it was held that it is well settled that if evidence relied upon by the party is available or could be made available with due diligence was not made available or produced, the same cannot be permitted to be introduced after a lapse of several year before the Appellate authority. The Learned DR also mentioned that additional evidence at Appellate stage is inadmissible when point was not raised before the lower authorities and reliance was placed on the decision in the case of Unique Beauty Care Products Pvt. Ltd. v. C.C.E. - 1988 (37) E.L.T. 369 (T). He also referred to the decision of the Supreme Court in Mineral and Metal Trading Corporation v. R.C. Mishra, 1993 (65) E.L.T. 474 (S.C.) = 1997 (68) ECR 540 S.C. wherein the Supreme Court observed that the certificate of sale of goods obtained from the foreign buyer by the Indian manufacture of the exported goods "was obtained long after the relevant transactions were over and evidently to buttress its case with respect to the tax credit certificate. Not much significance can be attached to it .. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehalf of the Revenue made submissions in respect of the various goods manufactured by the Appellants on job basis for different parties and our findings are as under : 7.1 The learned Advocate submitted that they made ejector casing assembly for M/s. B.E.M.L., Railway Coach Division; that this Assembly is meant for supply to Ordnance Factory, Medak, for the ultimate manufacture of 'infantry combat vehicle' which is apparant from letter dated 24-8-92 of M/s. B.E.M.L. addressed to the Collector; that Central Board of Excise Customs, under circular dated 27-1-92, had clarified to the Collector, Bangalore that when goods were manufactured by ancillary units and sub-contractors and were sent back to the units for further processing, fitting, manufacture, etc., and for eventual clearances to Ordnance Factory, there was absolutely no reason for denying the benefit of Notification No. 184/86-C.E. that Collector was directed to withdraw the show cause notice. The learned Advocate contended that this Circular should be taken into consideration for interpreting the Notification No. 144/88-C.E. In support of his contention, he relies upon the decision in the case of Air Control Chemical En ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Factory; that the letter relied upon by them extends the purview of the notification and as such it cannot be given effect to; that the product manufactured by the Appellant is not covered by the express language of the notification; that it was held by the Apex Court in Collector of Customs, Bombay v. Perfect Machine Tools Co. Pvt. Ltd. 1997 (96) E.L.T. 214 (S.C.) that when an accessory to a machine is imported with the machine it would not be ensured to the concessional rate of customs duty under the notification; unless that accessory has expressly been included in the exemption notification. 7.3 The Appellants are fabricating ejector casing assembly and it has not been shown by them that these are transmission and allied assemblies covered by Notification No. 144/88-C.E., dated 18-4-1988. Further the notification is very specific both regarding manufactures i.e. Bharat Earth Movers Ltd. and the party whom to be supplied i.e. Ordnance Factory, Medak. As the job worker is regarded manufacture as per various judgments of the Apex Court, High Courts this Tribunal, the Appellants are manufacturer of the impugned goods and as such the goods fabricated by them are not covered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dertaken by them was only a repair work, finishing job by filling up the holes in the casing by aluminium material by the process of welding. This is apparant from M/s. BEML's letter dated 27-5-1991 wherein they have mentioned that "Since M/s. K.R. Engg. Works, Bangalore, are the only experts available for welding rework of aluminium parts wherever rework by way of filling in the aluminium is involved." The Revenue has not controverted this submission nor they have adduced any evidence to show that a distinct product commercially known as a new product was brought into existence by them. We, therefore, hold that the work of filling of holes by welding was only a repair work and the value of such work is not to be taken into consideration for computing the aggregate value of clearance. 9.In respect of remaining goods fabricated on behalf of B.E.M.L. Railways Coach Division, the argument of the Learned Advocate that the goods were not fully finished as BEML carried out stress relieving test, drilling etc. are not acceptable as nothing is on record to show that these were in semi-finished conditions. 10. In respect of job work done for Naval Science Technological Laboratory the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of completed ejector casings - one for claiming 90% payment of their labour charges and the other for claiming the balance 10% and in the worksheet, both the amount of Rs. 8500/- and 8100/- had been taken for calculating cost of material. Finally he submitted that as per decision of the Larger Bench of the Tribunal in Sri Chakra Tyres Ltd v. C.C.E., Madras, 1999 (108) E.L.T. 108 (T). The price has to be considered as cum-duty price and the assessable value has to be computed therefrom, that no penalty is imposable as there was no mala fide involved. In respect of other job work, the learned Advocate did not press the claim. 11.2 As far as other job works are concerned, the findings of the Collector are upheld in view of no challenge by the learned Advocate for the Appellants. In respect of ejector casing, the point made by the learned Advocate is a valid one and the cost of the raw material has to be reworked by the Adjudicating Authority. Similarly in view of the ratio of the decision in Sri Chakra's case, Supra, the price has to be considered as cum-duty price wherefrom assessable value has to be determined by the Adjudicating Authority. Looking to the totality of facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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