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2018 (10) TMI 1365 - AT - Central ExciseValuation - inclusion of bought out items cleared along with sizing machine in assessable value - exemption on Warping head stock, a part of the Warping Machine denied - benefit of cum duty. Held that - Reliance placed in the case of COMMISSIONER OF CENTRAL EXCISE, DELHI VERSUS M/S. FRICK INDIA LTD. & ANOTHER 2007 (9) TMI 6 - SUPREME COURT OF INDIA , where Hon ble Apex Court directed inclusion of the value of bought out items for the purpose of assessment. Hon ble Apex Court merely remanded the matter for re-determination of value from the point of value addition and possibility of invocation of Section 14A of Central Excise Act, 1944 which deals with special audits - in the present case, the decision of Hon ble Apex Court in case of Frick India Ltd. does not help the case of Revenue. Moreover the excise duty is a tax on manufacture of goods. Mere purchase and supply of bought out goods with excisable cannot make them liable to excise. There could have been a possibility of demanding tax on the full machine manufactured at buyers premises, however, the present proceedings cannot succeed on that also on grounds of lack of jurisdiction. Appeal dismissed - decided against Revenue.
Issues:
1. Demand of excise duty on bought out items cleared along with sizing machine. 2. Denial of exemption on Warping head stock as part of the Warping Machine. 3. Appeal filed by Revenue challenging the Commissioner (Appeals) decision. Issue 1: Demand of excise duty on bought out items cleared along with sizing machine The appellant argued that the demand for excise duty was raised on them for not including the value of bought out items while discharging duty on goods. They contended that they paid duty only on items manufactured by them and not on the bought out items. The appellant cited a previous Tribunal order where a similar demand was set aside. The Revenue appealed, citing the decision of the Hon'ble Apex Court in Frick India Ltd, emphasizing the inclusion of the value of bought out items for assessment. However, the Tribunal differentiated the facts of the present case from the Frick India Ltd case, stating that the issues were significantly different, and the decision in the case of M/s Narne Tulaman Manufacturers Pvt. Ltd was not applicable. The Tribunal concluded that the demand on bought out items was unjustified. Issue 2: Denial of exemption on Warping head stock as part of the Warping Machine The appellant did not contest the duty liability on the Warping Machine but sought the benefit of cum duty price. The Tribunal upheld the duty liability on the clearances of the Warping Machine but directed a rework of the duty amount considering the amounts received for the machines as cum duty price. The appellant was also held liable for interest and penalty under Section 11AC of the Central Excise Act, 1944. The Tribunal set aside penalties imposed on the appellant's partner based on jurisdiction and limitation points, following the settled law that partners cannot be penalized if the firm is penalized. The Tribunal also emphasized that mere purchase and supply of bought out goods with excisable goods does not make them liable to excise duty. Issue 3: Appeal filed by Revenue challenging the Commissioner (Appeals) decision The Revenue filed an appeal challenging the Commissioner (Appeals) decision to set aside part of the demand without considering the decisions of the Hon'ble Apex Court in Frick India Ltd and M/s Narne Tulaman Manufacturers Pvt. Ltd. The Tribunal analyzed the decisions and concluded that the Frick India Ltd case did not support the Revenue's case, and the M/s Narne Tulaman Manufacturers Pvt. Ltd case was not relevant to the present issue. The Tribunal dismissed the Revenue's appeal and allowed the appeals of M/s Jupiter Engineering Company and Sh. Jatinbhai Jayantilal Mistry. In summary, the Tribunal ruled in favor of the appellants, setting aside the demand for excise duty on bought out items and granting the benefit of cum duty price for the Warping Machine. The Tribunal also provided detailed reasoning for each issue, emphasizing the legal principles and precedents involved in reaching its decision.
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