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TMI Blog2010 (9) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... ure of the fact of supply of generator and filter, which they were not legally obliged to disclose, would not amount to positive suppression on their part. - E/2576&2577/2005 - A/1422-1423/2010-WZB/AHD - Dated:- 8-9-2010 - Ms. Archana Wadhwa, Member (J) and Shri B.S.V. Murthy, Member (T) REPRESENTED BY : Shri P.M. Dave, Advocate, for the Appellant. Shri R.S. Sangia, SDR, for the Respondent. [Order per : Archana Wadhwa, Member (J)]. - The appellant is engaged in manufacture of various automobile service equipments like High Pressure Cleaner parts Washer, Head Lamp Tester, Oil Section Unit, Tyre Changer. Infrared and Refrigerant Recovers-Recycling Recharging Unit, A.C. Charging Unit, and Wheel Balancer etc. They are also manufacturing Paint Booth (Neptune Painting and Drying Booth) Cabinet and were clearing the same on payment of duty under Tariff Heading 8424.00. The appellant's factory was visited by Central Excise officers on 26-3-2001, who conducted various checks and verifications. Certain stock of final product was not found entered in RG-1 register and the same was, accordingly, put under seizure and a separate show cause notice for the same stand iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich appropriate duty of Excise stand paid by them. The said Booth is a complete commodity by itself and is actually being marketed by them without generator and filter. As their customers insist on for supply of generator and filter, they procure the same from the market and supply to their customers. The value of such bought out items cannot be included in the assessable value of paint booth and drying cabinet. They also submitted that paint booth is a cabinet in which various articles including bodies of motor, car, parts of machinery are painted and the purpose of the same is to provide dust free atmosphere wherein the painting of such articles could be done. Any article painted in paint booth would have dried by taking its own time. However, to enhance the process of drying, the generator and filter are also supplied by them. Inasmuch as they are not manufacturing generator and filter, the value of the same cannot be included in the value of paint booth. They also clarified that such generator and filter are never brought to their factory and are supplied only from their godown or directly to the customer's premises from the manufacturing unit. They pleaded that the change in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required to be added in the value of paint booth or not. 9. The appellants have contended that the paint booth is a complete commodity and is sold by them without supply of bought out items like generators and filters in many cases. Generators and filters are optional items and the buyers sometimes desire the same only to achieve more efficiency and they are bought out from the other manufacturers and supplied to their buyers. As paint booth is only for providing dust free atmosphere, fresh air is circulated to the room at the time of painting so that the painter does not suffocate. Subsequent use of hot air generator is only for the purpose of circulating hot air for drying purpose, which process could have even otherwise been achieved by natural source. As drying of painting in natural manner takes a longer time, some buyers use generator for circulating hot air for drying paint quickly. 10. We note that the Commissioner, while dealing with the above plea of the appellant has observed that as per the statement of Shri Shah, Director of the said unit, their clients insist for supply of hot air generator and filter. The use of expression 'insist' and acceptance of the same by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing upon the earlier decisions of the Tribunal in the case of MIL India Ltd. v. CCE, Noida - 2003 (59) RLT 985 (CEGAT-Del.) = 2003 (158) E.L.T. 717 (Tri.) as also in the case of Cimmco Birla Ltd. v. CCE, Jaipur - 2003 (57) RLT 754 (CEGAT-Del.) = 2003 (156) E.L.T. 1019 (Tri.), the Tribunal observed that the value of bought out items to assess the duty on manufacturing unit, cannot be added, especially when the bought out items are directly being supplied to site of the customers. In case of CCE, Ahmedabad v. Air Control Chem. Engg. Co. Ltd. - 2005 (181) E.L.T. 242 (Tri.-Mumbai), the Tribunal held that the bought out items supplied directly from Stores without bringing them to the factory, have to be held as accessories and not essential to the compressors and since they were all duty paid, the duty could not be levied upon them once again by including their value in the assessable value of the compressor. In the case of CCE, Pune v. D.B. Electronics (P) Ltd. - 2000 (126) E.L.T. 1017, it was held that the value of the battery has to be added in the value of UPS only where the battery, UPS are cleared together from the manufacturing factory and not where UPS along cleared from the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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