2013 (9) TMI 131 - AT - Central Excise

Manufacturing Activity or trading activity - Sale of Computerized Wheel Aligner - whether buying of five different items, dispatching the same to the customer s premises under the cover of one invoice and the use of the same in the customer s premises for checking the alignment of a vehicle would amount to manufacturing activities on the part of the appellant or not - Held that - The appellants were also helping the customers in digging the pit and connecting all the parts at site for the wheel aligner. It is also on record in the shape of a Chartered Engineer certificate that such connections are temporary and after the job is done, they are taken out and kept individually in the corner of the workshop. The same are again reconnected at the time of the second job. Merely because the appellants were responsible for warranty and after sale services, by itself cannot be held to be a reason for holding the activities of the appellants as amounting to manufacture. No manufacturing activities takes place at the appellant s end, the confirmation of demand of duty on them was not the legal - No process was being undertaken by the appellant either at their godown or at their factory - It was a case of simpliciter providing of all the components of the wheel aligner to the workshop and to assist the workshop people to use the same by digging a pit and connecting the various items in their premises - The goods were only cleared under one invoice - the goods were not even brought to the factory and were cleared from the godown itself or sometimes directly from the vendor s premises - The duty was accordingly, set aside along with setting aside of confirmation of interest and penalty imposed upon them. NARNE TULAMAN MANUFACTURERS PVT. LTD. Versus COLLECTOR OF C.E. 1988 (9) TMI 51 - SUPREME COURT OF INDIA - no new and commercially different commodity, having different name character and use emerges, so as to hold the activity as amounting to manufacture and liable to duty - by making a distinction between manufacturing and packing, it was held that activity undertaken by the appellant was one of packing and not manufacturing. Extended Period - The demand was also hit by bar of limitation - The demand stands confirmed by invoking the longer period of limitation - The appellants were clearing the goods under the cover of their commercial invoices and also reflecting the same in their sales tax returns - If that be so, it cannot be held that the activities being undertaken by the appellants were with any mala fide on their parts - Merely because the appellant did not inform the department, by itself cannot be made a ground to attribute them with any mala fide or deliberate suppression with an intent to avoid payment of duty - When the said trading activities being reflected in the statutory records and in the returns filed with the sales tax authorities, it cannot be held that there was any intent to evade payment of duty, on the part of appellants Order set aside Decided in favour of Assessee.

Issues Involved:
1. Whether there is any product known in the market as Computerized Wheel Aligner?
2. Whether the noticee is undertaking any process which amounts to manufacture under the provisions of Section 2(f) of the Central Excise Act, 1944?
3. Whether the equipment, Computerized Wheel Aligner, is chargeable to duty?
4. Whether the extended period is invokable in the facts and circumstances of the case?
5. Whether the noticees are liable for penal action?
6. Whether interest in terms of Section 11AB of the Central Excise Act, 1944, is recoverable from the said assessee?

Detailed Analysis:

Issue 1: Existence of Product Known as Computerized Wheel Aligner
The Commissioner concluded that Computerized Wheel Aligner is an independent machine known in the market and is an excisable commodity different from its parts. However, the Tribunal emphasized the need to first address whether the appellant undertook any manufacturing process.

Issue 2: Undertaking Manufacturing Process
The appellants purchased five items (PC with software, turn tables, sensor holders, sensors with cable, and trolley) and dispatched them to customers without any processing. The Tribunal noted that the components were temporarily connected at the customer's site for wheel alignment and then disassembled and stored separately. The Tribunal found no manufacturing process, as defined by Section 2(f) of the Central Excise Act, was undertaken by the appellants. The Tribunal referenced the Andhra Pradesh High Court decision in XI Telecom Limited, which emphasized that a new product with a distinct identity must emerge for an activity to be considered manufacturing.

Issue 3: Chargeability to Duty
Given the finding on Issue 2, the Tribunal held that no new product emerged from the activities of the appellants, and thus, no duty liability could be fastened upon them. The Tribunal cited the case of India Medtronics Pvt. Limited, where assembly of various items into a kit was not considered manufacturing.

Issue 4: Invoking Extended Period
The Tribunal found that the appellants' activities were reflected in their commercial invoices and sales tax returns, indicating no mala fide intent or deliberate suppression of facts. Thus, the demand was also hit by the bar of limitation.

Issue 5: Liability for Penal Action
Since no manufacturing activity was undertaken, the Tribunal set aside the penalties imposed on M/s. Neptune Equipment Pvt. Limited and its directors.

Issue 6: Recoverability of Interest
As the demand for duty was set aside, the question of recovering interest under Section 11AB of the Central Excise Act became infructuous.

Conclusion:
The Tribunal set aside the impugned order, concluding that the appellants did not undertake any manufacturing activities, thus no duty liability arose. The penalties and interest were also set aside, and the appeals were allowed with consequential relief to the appellants.

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