TMI Blog2004 (1) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... hem alleging that they have contravened the provisions of Rules 9(1), 173B and 173C of Central Excise Rules, 1944 as they manufactured and cleared assemblies/sub-assemblies of washing machines referred to by them as 'kits' of washing machine by wilfully misstating and misdeclaring them as parts of washing machines in order to avail lower rate of duty applicable to the parts. In fact, they have cleared kits, which constitute washing machines in the unassembled condition, and duty was required to be discharged thereon at the rate applicable to washing machines. The duty demanded in the Show Cause Notice was confirmed by the Assistant Commissioner. On appeal before the Commissioner (Appeals), Bangalore, the Commissioner (Appeals) has found tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tariff heading for this, and absence of any exemption, to be assessed in terms of Rule 2(a) of Rules of Interpretation under the same sub-heading as washing machine". She pleaded that the Respondents have manufactured and cleared assemblies/sub-assemblies of washing machines declaring them as 'Kits' of washing machine. The 'Kits' cleared by the Respondents are sent to M/s. BSUA, NOIDA in semi-knocked down condition comprising of Tub assembly, Control plate assembly and some loose parts. The Tub assembly has the essential character of washing machine and all these sub-assemblies are removed in unassembled condition. As per Rule 2(a) of the Interpretation Rules, any reference in a heading to goods must be taken to include a reference to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry are parts of washing machine. The activity undertaken at their NOIDA factory amounts to manufacture and they are paying duty at the time of clearance of the goods, which includes the value addition in NOIDA factory. In the Respondents own case, B.P.L. India Limited v. CCE, Cochin, reported in 2002 (143) E.L.T. 3 (S.C.), the Apex Court has held that 'assembly of imported 'kits' amounts to manufacture'. Once the activity of assembling the goods amounts to manufacture, it amounts that as final product i.e. washing machine is cleared at the NOIDA factory and not at the Bangalore factory. Even if duty is to be levied at their Bangalore factory, they are eligible to take credit of the same at NOIDA factory as rightly has been upheld by the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the affidavit noted above. Therefore, we have no hesitation to conclude that what was cleared from the appellants' Whitefield unit had acquired all the essential characteristics of a washing machine, albeit the same was cleared in unassembled condition which the appellants also choose to call Kits. Therefore, in view of the above findings, we find that the ratio of the decision in the case of Sipani Automobiles is available for application to the facts of this case.....". 7. We find that the decision of the CEGAT was based on the facts as narrated at the relevant time. But we find that in the present case, the Commissioner (Appeals) has given the factual position as under : (i) "The goods cleared for the appellant-factory we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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