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TMI Blog2006 (8) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise, Kanpur. 2. Facts of the case in brief are that the appellant were engaged in doing job of repairing of old and used part of machinery/dies and in manufacture of new parts/dies for machinery either on job work basis or on their own accounts which are removed on sale basis. These jobs were undertaken by them by using the process of Plasma Coating, Tig Welding, Vacuum Heat Treatment and other allied activities. The manufacturing premises of the appellant No. l was visited by a team of Central Excise Officers on 8-3-02 in order to ascertain whether the activities undertaken by the appellant No. 1 amounts to manufacture. It was ascertained that they have cleared the goods valued at Rs. 58,85,894/- in excess of the SSI exemptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicating Authority after taking into consideration the facts on the case, show cause notice and defence put forth by the appellants, confirmed the demand of duty along with interest and imposed penalty equivalent to duty under Section 11AC of the Act and Rs. 25,000/- under Rule 25 of Central Excise Rules, 2002 read with 173Q of Central Excise Rules, 1944 on appellant No. 1 and penalty of Rs. 10,000/- on appellant No. 2 vide the impugned Order-in-Original. 4. Feeling aggrieved, the appellants have filed the instant appeals on the grounds that : 1. in respect of job work being done by them they were following the procedure contained in Notification No. 214/86-CE dated 1-3-86 and the provision of Finance Act, 1944 relating to Servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tena of judgment of Apex Court, High Courts and CESTAT have been relied upon. 5. In order to grant natural justice to the appellants, date of personal hearing was fixed on 19-7-06. Shri Amit Awasthi, Advocate appeared on behalf of the appellant and reiterated the grounds of appeal. Fresh submission dated 19-7-06 was also submitted to prove their case. Discussion Findings 6. I have carefully gone through the facts of the case, Order-in-Original, grounds of appeal and written submission filed at the time of personal hearing. Following issues merits decision : (i) whether extended period is invokable; (ii) whether the activities undertaken by the appellant No. l are liable to be held as manufacture; (iii) whether int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtment. Further, there is nothing on record to show that full facts were disclosed before the Service Tax wing of the department. Under the circumstances, the claim of appellant No. 1, that matter was in the knowledge of the department is not sustainable and the rulings relied upon by them are distinguished due to the same reason. Accordingly, I hold that the extended period has been rightly invoked by the department and demand is not liable to be quashed on the ground of limitation. 10. On the issue whether the process undertaken amounts to manufacture, the adjudicating authority has held that the process of Plasma Coating Vacuum heat treatment process and tig welding result in increase in life of the components and help in producing p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and different articles should be such that it is known as different articles in the commercial world. The same views has expressed by Apex Court in the case of Gramophone Co. of India Ltd. v. CCE [1999 (114) E.L.T. 770 (S.C.)]. The view has been further affirmed by Apex Court in the case of Meltax (I) Pvt. Ltd. v. CCE, New Delhi [2004 (165) E.L.T. 129 (S.C.)]. Applying the ratio of above findings of Apex Court to the impugned case, it is revealed that there is no change in old and used machines received by the appellant either in terms of character or quality or name of the machines. Accordingly, I am of the opinion that since the process of tig welding, plasma coating and vacuum heat treatment have not resulted in emergence of a new produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... milar to relied upon case. Accordingly, I take cognizance of the same and hold that the process undertaken is repair. 16. Further, the appellant has pleaded that the appellant is paying Service Tax under the repair maintenance for their processes. On this issue, I am of the opinion that when Service Tax is being levied and collected by the department from the appellant for the processes undertaken, the department cannot charge duty after holding the processes as MANUFACTURE as the department cannot take two views for the same processes. There is nothing on record to show that the appellant has been directed not to pay Service Tax as the processes undertaken by the appellant amounts to manufacture. Under the circumstances, I am of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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