TMI Blog2000 (11) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... at they received inputs from M/s. Supreme Cylinders Ltd. under Rule 57F(4) of the Central Excise Rules and convert the same into Foot Rings and V.S. Plates which are parts of L.P.G. Cylinders; that the Dy. Commissioner Central Excise under Adjudication Order No. 131/98 dated 30-10-98 confirmed the demand of duty amounting to Rs. 4,89,504/- and imposed penalty of equal amount under Section 11AC of the Central Excise Act holding that M/s. Supreme Cylinders did not follow the procedure prescribed under Rule 57F of the Central Excise Rules; that the process of fabrication amounts to manufacture and as such the appellants are liable to pay Central Excise Duty; that Commissioner(Appeal) also under impugned Order has rejected their appeal. The ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L.T. 207. 3.The ld. Advocate, further, submitted that the Central Excise Department has also seized finished goods from their factory premises which have been confiscated with an option to redeem the same on payment of fine of Rs. 50 thousand; that the goods are not liable to confiscation as held by the Tribunal in the case of Bhilai Conductors (P) Ltd. v. CCE, Raipur, 2000 (125) E.L.T. 781 (Tribunal) = 2000 (91) ECR 569 (T) wherein it was held that in absence of mens rea, the goods cannot be confiscated which are lying inside the factory. He also mentioned that the duty has been confirmed against the appellants for the period from April, 1995 to April, 1997 and as such the major part of the demand is before the provisions of Section 11AC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplier is not the manufacturer of the goods. Reliance was placed on the decision in the case of Card Cure Engineer Compnay v. CCE, 1996 (86) E.L.T. 351 and CCE Vadodara v. Gujarat Electricity Board, 1996 (81) E.L.T. 284. The Ld. SDR also relied upon the decision of the Larger Bench of the Appellate Tribunal in the case of Jay Yuhshin Ltd. v. CCE, New Delhi, 2000 (119) E.L.T. 718 (Tribunal-LB) = 2000 (39) RLT 501, wherein it was held that the benefit of the notification will not be available if the conditions specified therein are not complied with. It was also held in the said case that for want of factual substantiation it cannot be accepted that Maruti Udyog Ltd. "had given any undertaking under Para 2 of Notification No. 214/86 in relati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon by the ld. SDR. In CCE, Vadodara v. Gujarat Electricity Board, supra, it was held by the Tribunal that "merely because the electricity board was supplying raw materials the prestressed concrete poles were manufactured as per their specifications through the actual manufacturer or job worker on payment of job work charges …….. the supplier of raw material could not be deemed as manufacturer of the goods." 6.The fact that in the present matter, the raw material supplier has utilised goods manufactured by the appellants will not change the position as far as the question who is manufacturer is concerned. The Appellants have claimed the benefit of Notification No. 214/86-C.E. which provides exemption to the goods manufactured in a factory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plier of the raw material will be liable to pay the duty on the goods manufactured as a Job Work." The ld. Advocate has also mentioned that the benefit of smallscale exemption has not been allowed to them for the clearances effected in April, 1997. On query from the Bench, he fairly intimated that this plea was not raised in appeal filed by the appellants before the Commissioner (Appeals). As this issue regarding denial of SSI exemption was not challenged in appeal before the lower appellate authority, it cannot be raised at the second appeal stage. We do not agree with ld. Advocate that it is a legal plea. 7.We, therefore, uphold the demand of Central Excise Duty as confirmed in the impugned order. 8.As far as imposition of penalty und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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