1998 (1) TMI 214 - AT - Central Excise

Summary

Issues Involved:
1. Exemption eligibility u/s Notification No. 217/86.
2. Determination of real manufacturers.
3. Applicability of limitation period.
4. Liability to pay interest u/s 11AB.
5. Liability to penalty u/s Rule 173Q read with Section 11AC.

Summary:

Issue I: Exemption Eligibility u/s Notification No. 217/86
The Tribunal examined whether material handling equipment like trollies, bins, and pallets are eligible for duty exemption under Notification No. 217/86. The Notification exempts goods used within the factory of production but excludes machines, machinery, plant, equipment, apparatus, tools, or appliances used for producing or processing goods. The Tribunal found that material handling equipment is used for processing goods in relation to the manufacture of motor vehicles and thus falls outside the coverage of Notification No. 217/86. This issue was answered in the negative.

Issue II: Determination of Real Manufacturers
The Tribunal evaluated whether the appellants or the fabricators were the real manufacturers of the disputed items. The fabrication was carried out by three job workers within the appellants' premises, under the appellants' control and supervision, using materials supplied by the appellants. The Tribunal held that the fabricators were hired labor and not independent manufacturers, making the appellants the real manufacturers of the trollies, bins, and pallets. This issue was answered affirmatively.

Issue III: Applicability of Limitation Period
The Tribunal considered whether the entire demand was barred by limitation. The show cause notice was issued beyond the normal period of six months. The Tribunal found no deliberate attempt to withhold information by the appellants, who were under a bona fide belief that the material handling equipment was exempt under Notification No. 217/86. Consequently, the extended period of limitation was not applicable, and the entire demand was barred by limitation. This issue was answered affirmatively.

Issue IV: Liability to Pay Interest u/s 11AB
The Tribunal examined the liability to pay interest under Section 11AB, which applies to duty payable on clearances effected after the section's introduction. The Tribunal held that the provisions of Section 11AB were not applicable in this case since the duty became payable before the section's introduction. This issue was answered in the negative.

Issue V: Liability to Penalty u/s Rule 173Q read with Section 11AC
The Tribunal reviewed the imposition of a penalty equivalent to the duty amount under Rule 173Q read with Section 11AC. Since Section 11AC was introduced after the period in question, it could not be applied retrospectively. The Tribunal also set aside the penalty under Rule 173Q, as the demand was barred by limitation. This issue was answered in the negative.

Separate Judgment by Member (Technical):
The Member (Technical) disagreed with the findings on limitation and penalty under Rule 173Q. He held that the appellants failed to prove a bona fide belief and thus upheld the duty demand while reducing the penalty to Rs. 5,00,000/-. The difference of opinion was referred to the Hon'ble President for a Third Member's decision on whether the entire demand is barred by limitation and the penalty u/s Rule 173Q should be set aside or if the extended period of limitation is applicable with a reduced penalty.