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TMI Blog1987 (11) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows : This is to certify that M/s. Frizair Corporation B-47 48, Industrial Estate, Sanatnagar, Hyderabad, have paid Central Excise duty of Rs. 28,426-98 by debiting in RG23 (Part II), S. No. 125 on 9-9-1983 and a penalty of Rs. 7,000/- in personal Ledger Account on 9-9-1983 S. No. 30 as ordered by the Additional Collector, Central Excise in his O.R. No. 2/82 Adjn./Adjn. Order No. 39/83, dated 2-6-1983. The learned SDR objected that the duty had been paid by debiting to RG 23 which is not permissible; it should be paid by cash. This may well be so, but we can go only by what an officer of Central Excise certifies. A Superintendent recorded clearly that M/s. Frizair have paid Central Excise duty of Rs. 28,426-98 by debiting in R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay as they could not keep them any longer with them. 3. The learned counsel for the department said there was no proof that the air-conditioners had been cleared on payment of duty from M/s. Frizair s factory. Even though they spoke of repair to the machines they said nothing about the repair needed. Evidently this can be used for making new air-conditioners. He referred Rule 173H of Central Excise Rules under which only duty paid-goods could be brought back; there was no proof of duty payment on these goods. The rule was a facility to the assessee, but M/s. Frizair could not take advantage of it. It was in nature of an exemption and it was the burden of the assessee to prove their entitlement. 4. The machines had been lying for quite a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e regulations. 8. For their part M/s. Frizair hardly gave any convincing explanation how they expended the time when they had the air-conditioners with them. The learned SDR made a strong point when he said repair should not take so long and I would agree. It ought to have been apparent to the factory at once that they would not be able to repair the machines and once this fact was established they should have taken steps to return the machines without delay, if for no other reason than to avoid a misunderstanding with the department. They asked for a year s extension to repair the air-conditioners; I consider this to be a fantastically long time. 9. But I believe that the fault lay more on the side of the officers. The Additional Colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the factory took the parts of these machinery to manufacture new air-conditioners. He declared : If altogether new parts are put it would tantamount to manufacture. Hardly anything of the old machine is left to identify it. In this particular case I find that what has been cleared was other than that was received. The argument that 6 air-conditioners were returned as they were on gatepass No. 76, dated 31-8-1978 seems to be an afterthought. These have been removed after fresh manufacture . Putting in new parts does not amount to manufacture : otherwise every man who takes his watch to be repaired and find that it needs a new crown or a new spring will discover that he has taken part in manufacture of a watch. Or a man who takes his fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here had been manufacture when he has not even made an attempt to prove it. The submission of the assessees that the machines were for repairs but could not be repaired stands unchallenged. 14. This is not to say that M/s. Frizair had not contributed to the tangle; but it seems they did make an attempt to place things on records before the Central Excise authorities in a manner that would enable them to check and satisfy themselves about the genuineness of the transaction. Considering everything, I think the benefit should go to the factory, M/s. Frizair Corporation, the appellants. I consider that the department has not proved its case conclusively and, therefore, I must come to the conclusion that the appellants cannot be called upon to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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