TMI Blog2004 (7) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... Conditions (1) (2) (3) (4) (5) 39 85.43 Machinery for the production of a commodity 10% ad valorem - 2. (a) The entities, claimed for benefit of the notification and under dispute, are falling under Heading No. 85.43. The appellant is a manufacturer of Electro Plating Plant Equipments. The entities under dispute were, by an earlier order on 22-6-93, granted the benefit under Notification 51/93 by holding that the said entities were used for production of a commodity and classification list were duly approved for 1993-94. (b) The Assistant Commissioner vide Order, dated 9-5-1996, for classification with effect from 10-5-96 found - "...The machinery in question in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - (a) The Tribunals decision in case of Canning Mitra Phoenix P. Ltd. 1996 (88) E.L.T. 796 (Tribunal) were not based on any technical expert advise. The decision in 4 thereof records- "4.............The Notification confers benefit only in respect of machines used for the production of commodity. Hence, on perusal of the relevant Tariff item, it covers electrical machines having individual function not elsewhere presented in the chapter. From this heading the notification seeks to confer the concessional rate only in respect of machines listed therein. Hence the question for consideration is whether it is all machines capable of producing a commodity. The answer to this question cannot be given in favour of the appellant. The conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seeking to apply the exemption to a machine 'per se' capable of manufacture and not perform incidental or in relation to notes under 85.43. The heading covers machines under 85.43 and none of these entities would be covered by such an interpretation as is being resorted by Revenue reading the exemption not applicable to any entity under 85.43. Interpretations which would render an exemption a nullity are not permissible. (iv) The words 'used' employed in the term under reference would extend the benefit to an use even for part of the process of production of a commodity. There is no cause to interpret the word 'used for' in a restricted manner. Similarly the word 'production' cannot be used in a restrictive meaning to encompass only " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titute Kari Kudi 630 006, Tamil Nadu, certifies Electroplating does result in the production of a commodity and lists inter alia Ball Bearing, Bang PCB and other electronic components and further goes to certify that without this process the products will not be acceptable as a 'commodity' in the market. (iii) Certificates produced from Customers engaged in Motor cycle, Auto a component Textile and bearing manufacturers on perusal prove that the commodities therein cannot emerge, till electric plated in the sequence. The process of over plating to achieve a deposit in bearing manufacture read as - "........In the highest capacity copper alloy bearing the finished copper or steel is first plated on the inside with a heavier plate of n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduction of an intermediate or final commodity yet such production of a commodity will not amount to manufacture. The use is of a term 'production of a commodity' and not 'manufacture' of a commodity or manufacture of goods has been used by legislature in the notification that would keep the coverage of 'any change' brought in an article, by manipulation. The results may be emergence of a commodity which would be sufficient, such emergent commodity may be or may not be mentioned as goods in the Central Excise Tariff. The coverage under the term used in the notification is therefore, wide enough to cover the entities herein. (d) The word 'commodity' would encompass any tangible thing produced of advantage to mankind as per the dictiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned for production of a commodity. Similarly in case of CC v. McDowell Co. - 1997 (94) E.L.T. 215 an Agitator machine which merely was to agitate/mix and keep partially polymerised hydro carbon was held to be a 'machinery used for production of a commodity'. Following these decisions, we have no hesitation to consider the entities impugned herein to be covered by the term 'machine for the production of a commodity' as used in Notification 56/95 at Sr. No. 39 of the Table there to. Since the use is definitely to improve the function or and perform at an intermediate stage on import function for the manufacture of the final products. (g) Since the duty exemption is found to be eligible, the duty demands as made and penalty as arrived at ..... X X X X Extracts X X X X X X X X Extracts X X X X
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