2018 (5) TMI 381 - AT - Central Excise

CENVAT credit - engines/pump/frames - denial on the premises that the process undertaken by them does not amount to manufacture - Whether the activity of inspection and testing in respect of the parts for proper alignments of pump set on engines, pump and base frames and packing thereof in master box amounts to manufacture as held by the Member - Difference of opinion - majority order. Held that - the view expressed by Brother Member (Judicial) are agreed upon, that the process of manufacture is involved in the subject goods - the facts are not in dispute that the appellant are procuring engines, pumps and base frames from various suppliers. These items were inspected by the appellant for proper alignment of engine, pump and base frames and all these items are sold all together. As all these items are sold by the appellant together as pump sets, therefore, engine, pump and base frames are not sold as such by the appellant, therefore, the new product has come into existences after inspection and alignment done by the appellant, therefore, we hold that the activity undertaken by the appellant amounts to manufacture. The activity of inspection and alignment of the pumps, engines and base frame makes marketable as pump set, in that circumstances, the process undertaken by the appellant amounts to manufacture. In view of the majority decision that the activity undertaken by the appellant amount to manufacture, the appeal filed by the appellant is allowed.

Summary

Issues Involved:
1. Whether the process undertaken by the appellant amounts to manufacture.
2. Entitlement to avail Cenvat credit on engines, pumps, and base frames.
3. Imposition of penalty under Rule 15(1) of the Cenvat Credit Rules, 2004.

Detailed Analysis:

1. Whether the process undertaken by the appellant amounts to manufacture:

The appellant contended that the activities of alignment, testing, and inspection of the parts (engines, pumps, and base frames) to create a pump set qualify as manufacturing. They referred to Note 6 to Section XVI of the First Schedule to the Central Excise Tariff Act, 1985, which states that converting an incomplete or unfinished article into a complete or finished article amounts to manufacture. The appellant argued that their process made the product marketable, thus constituting manufacturing.

The Tribunal considered the facts and noted that the appellant's activities included inspecting and aligning the components, then packing them in a master carton with the company's logo and model number. The Tribunal found that since the appellant sold these items together as pump sets, a new product came into existence after the inspection and alignment, thus amounting to manufacture. The Tribunal supported this view by referring to previous decisions in similar cases, such as Western Refrigeration Pvt. Ltd. and Exide Industries Ltd., where similar activities were deemed manufacturing under Note 6 to Section XVI.

2. Entitlement to avail Cenvat credit on engines, pumps, and base frames:

Given the Tribunal's decision that the appellant's activities amount to manufacture, it followed that the appellant was entitled to avail Cenvat credit on the inputs (engines, pumps, and base frames). The Tribunal referenced several case laws, including Indo Asian Fuse Gear Ltd. and Exide Industries Ltd., which supported the view that activities making the product marketable qualify as manufacturing, thereby entitling the manufacturer to Cenvat credit.

3. Imposition of penalty under Rule 15(1) of the Cenvat Credit Rules, 2004:

The appellant argued that the penalty under Rule 15(1) was not proposed in the show cause notice and that there was no suppression of material facts. The Tribunal noted that the show cause notice did propose liability for penal action under Rule 15(1) and Rule 15(2). The Tribunal upheld the adjudicating authority's imposition of the penalty under Rule 15(1), as the appellant had wrongly taken the Cenvat credit, even though there was no fraudulent intent or suppression.

Separate Judgments:

Member (Judicial): The Member (Judicial) held that the appellant's activities amounted to manufacture, thus entitling them to Cenvat credit and negating the need for penalty under Rule 15(1).

Member (Technical): The Member (Technical) disagreed, stating that the activities did not constitute manufacturing as the components were merely packed together without significant transformation. Consequently, the appellant was not entitled to Cenvat credit and was liable for the penalty under Rule 15(1).

Third Member (Technical): The third Member (Technical) sided with the Member (Judicial), agreeing that the activities amounted to manufacture. The final majority decision was that the appellant's activities did constitute manufacturing, allowing the appeal and entitling the appellant to Cenvat credit with consequential relief.

Majority Order:
The majority decision concluded that the appellant's activities amounted to manufacture, allowing the appeal with consequential relief.