9911796707
TMI Blog1990 (8) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... and on which the wagon body was mounted on the ground that the appellants manufactured only the wagon body on the wheel sets supplied by the Railways and that they did not also charge for the value of such wheel sets in the invoices. The Assistant Collector who adjudicated the proceedings observed that a wagon is complete only when the wagon body is fitted to the wheel sets. That since they mount the wagon body on the wheel sets and deliver the wagons to the Railways after testing the operational capability, they become the manufacturers of the complete wagons and for that reason their duty liability rests on the value of complete wagons delivered to the Railways and accordingly he raised the demand on the value of wheel sets which was not included in the value of the wagons at the lime of clearances. The contentions of the appellants that they were entitled to concession under Notification 120/75 dated 30-4-1975, required to pay duty on the charges contracted for the job work under Notification 119/75 dated 30-4-1975 and time barring aspect in raising demands were negatived by the Assistant Collector as well as by the Appellate Collector in appeal. Hence, these three appeals. We h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Tribunal in the case of Bhartia Electric Steel Company Ltd. v. Collector of Central Excise [1988 (38) E.L.T. 169]. While countering the arguments Shri Bagaria contended that issue in this case is not the issue as regards the determination of the assessable value under Section 4 of the Act, as it was considered in that case relying upon the decision of the Supreme Court in the case of Empire Industries Ltd. [1985 (20) E.L.T. 179]. Furthermore that case did not relate to the fabrication of wagon bodies and mounting them on wheel sets, but it was as regards fabrication of bogies and use of wheels and axles in such fabrication works. In fact, bogies are essential parts of wheel sets and it is with the help of bogies that wheel sets are fitted to the wagon bodies. Wagons as such are altogether different from bogie s. He said that Notification No. 120/75 was issued under Rule 8 for grant of exemption. It cannot be said to be a Notification providing only for doing away with the procedural formalities but to grant exemption as it was issued under Rule 8. The invoice price and assessable value under Section 4 are bound to be different and if both are equated there would be no s.c.ope to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n applicability of Notification No. 119/75-CE., dated 30-4-1975, Shri Bagaria submitted that the appellants have done job work on behalf of Railways as per the expression Job Work explained in the explanation to this Notification and, accordingly, duty was payable only on job charges and no further duty was payable as it was exempted. Smt. Baliga, S.D.R. drew our attention to the decision of this Tribunal in the case of National Organic Chemicals Industries v. Collector of Central Excise - 1985 (21) E.L.T. 252 wherein it was held that Notification No. 119/75-CE cannot be applied if there is a manufacture in the primary sense of the term and that the said notification can only apply if the manufacturing activities in question are of incidental or ancillary type. While rejecting this plea Shri Bagaria said that it is no longer a good law in view of the fact that Supreme Court has taken consistent view that if a person only undertakes the incidental or ancillary activities, he would not be liable to pay central excise duty and in support of this contention he cited the following decisions :- (i) Siddheshwari Cotton Mills (P) Ltd. v. Union of India - 1989 (39) E.L.T. 498. (ii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a job work, from so much of the duty of excise leviable thereon as is in excess of the duty calculated on the basis of the amount charged for the job work. Explanation. - For the purposes of this notification, the expression job work shall mean such items of work where an article intended to undergo manufacturing process is supplied to the job worker and the article is returned by the job worker to the supplier, after the article has undergone the intended manufacturing process, on charging only for the job work done by him." 11. After going through the decisions cited by the learned counsel for the appellants, an inference can be drawn that this exemption notification is no longer applicable to the cases of manufacturing activities if they are mere incidental or ancillary, as the duty itself is exempted on such activity. But such an inference will not empower us to extend the benefit of the said notification to cases of this type invoking manufacturing activity other than mere manufacturing process of incidental or ancillary, in the absence of direct decision of the Supreme Court on this issue. The Tribunal being a creature under the statute cannot go beyond its jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In a way it was a residuary section. But once it was initiated under Rule 10 of the Central Excise Rules, it was not open to the appellate authority to invoke the larger period under Rule 10-A on some other ground. It is in excess of his jurisdiction. In the view, we have taken, we hold that Appellate Collector was not justified in invoking under Rule 10-A of the Central Excise Rules, 1944. Accordingly the department fails on this issue. 14. Issue No. 5 relates to Appeal No. 586 and 587/81-A. The contention of the appellants relating to this issue is that proceeding initiated either under Rule 10 or Rule 10-A cannot survive, as the said rules have been deleted with effect from 6-8-1977 and 1,. such deletion has been made without saving clause. 15. This issue is covered by the earlier decision of this Tribunal, in the case of M/s. Atma Steels Pvt. Ltd. v. Collector of Central Excise, Chandigarh and others reported in 1984 (17) E.L.T. 331, it was held that the proceedings initiated with reference to a rule or provision validly subsisting at the time of initiation proceedings can continue in spite of repeal or substitution of original proceedings. This was further followed in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
