2018 (12) TMI 6 - AT - Central Excise

Interpretation of statute - N/N. 49/2008- CE (NT) dated 24.12.2008 amended by Notification No. 9/2010- CE (NT) dated 27.02.2010 - vulcanised rubber tubes - whether the description of the goods, parts, components and assemblies of automobiles in Notification No. 2/2006- CE (NT) read with Notification No. 11/2006- CE (NT) includes tubes or not? - Held that - Firstly, it is evident that as far as this notification is concerned, for parts of automobiles to be covered, they need not fall under chapter 87 and they can fall under any heading of the Tariff. In the case of J.K Tyre & Industries Ltd 2018 (2) TMI 611 - CESTAT NEW DELHI , it has been held that tubes and tyres cannot be considered as parts of automobiles because they are also used for animal drawn vehicles, aircrafts etc. The tubes manufactured by the appellant cannot be called as parts of automobiles and therefore the Notification No. 2/2006- CE (NT) read with Notification No. 11/2006- CE (NT) prescribing Central Excise duty under Sec.4A based on RSP does not apply - also the retrospective applicability of the Circular or otherwise becomes irrelevant. Appeal dismissed - decided against appellant-Revenue.

Summary

Issues:
Interpretation of Notification No. 49/2008-CE (NT) and Notification No. 9/2010-CE (NT) for assessment of Central Excise duty based on retail sale price under Sec.4A of Central Excise Act.
Applicability of Board Circular F.No.167/38/2008-CX 4 dated 16.12.2008 in determining the classification of goods under the Central Excise Tariff Act.
Whether vulcanised rubber tubes manufactured by the appellant can be considered as "parts, components, and assemblies of automobiles" under the said notifications.

Analysis:
The case involved appeals filed by the Revenue concerning the assessment of Central Excise duty on vulcanised rubber tubes manufactured by the appellant. The appellant continued to pay duty as before, not under Notification No. 49/2008-CE (NT) read with Sec.4A of Central Excise Act, as they believed the tubes fell under chapter 40, not chapter 87. The original authority confirmed the demand, but the first appellate authority set it aside, citing a CBEC clarification that could only have prospective effect. The Revenue challenged this decision on the grounds that the Circular was not part of the original proceedings and that Circulars should have retrospective application. The first appellate authority relied on various judgments, including those of the Hon'ble Apex Court, to support their decision, emphasizing that the demand was based on Notification No. 2/2006 and not the Board Circular.

The Revenue argued that the notification in question applied to "parts, components, and assemblies of automobiles" falling under any heading, not necessarily chapter 87. The appellant contended that there was genuine doubt regarding the notification's applicability during the relevant period, as evidenced by a Board Circular, which the first appellate authority correctly considered to have prospective effect. The first appellate authority also examined the matter on merits, highlighting the ambiguity in classifying tubes as "parts" of automobiles, especially since they were used in various vehicles, not just automobiles.

The Tribunal analyzed whether vulcanised rubber tubes could be considered as "parts, components, and assemblies of automobiles" under the notifications. Referring to a previous case, the Tribunal held that tubes could not be classified as parts of automobiles since they were used in vehicles other than automobiles. Consequently, the Tribunal upheld the impugned orders dropping the demand, emphasizing the issue's merit-based resolution over the Circular's retrospective applicability. The appeals were rejected, and the impugned orders were upheld, concluding the judgment.