9911796707
TMI Blog2011 (7) TMI 675X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2. On 24-2-2011, the appeal was entertained on the following substantial questions of law :- (i) Whether the processes undertaken by the assessee amount to manufacture or not? (ii) Whether the processes undertaken by the assessee at Rampur warehouse being similar to the processes undertaken by the assessee at Hyderabad warehouse and the evidence being same, the Tribunal bench at Delhi could distinguish the earlier decision of Tribunal bench at Bangalore, to arrive at a different conclusion? (iii) Whether in the circumstances of the case, the extended five years period of limitation could be invoked by the Excise Department or not? (iv) Whether in the circumstances of the case, any penalty could be imposed? 3. It is submitted that the appellant was served with a show cause notice by the assessing authority both at Hyderabad and Rampur, where the Company have warehouses, in respect of demand of excise duty, on the alleged manufacture of photocopier through the Company during April 2002 to November 2005, and equal penalty imposed under Section 11 of the Central Excise Act 1944. 4. The Customs, Excise Service Tax Appellate Tribunal, South Zonal Bench, Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undertook assembly without making any verification whatsoever. We do not find any deposition by the executives stating that the modules were assembled in the warehouse. The legal arguments advanced by the Revenue are based on Note 6 of Chapter XVI of the CET. This note reads as follows : 6. In respect of goods covered by this Section, conversion of an Article which is incomplete or unfinished but having the essential character of the complete or finished Article (Including blank, that is an Article, not ready for direct use, having the approximate shape or outline of the finished Article or part, and which can only be used, other than in exceptional cases, for completion into a finished Article or a part), into complete or finished Article shall amount to manufacture . 5. We find that the Appellants did not carry but any activity as envisaged in this note. The components received in sets were cleared as such; no conversion of an incomplete machine into complete machine took place in the warehouse of the Appellants. Assembly of components into photocopiers took place at the premises of the respective buyers. In view of this factual position the arguments advanced by the Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Duty and the Appellants having knowingly dealt with such offending goods are not sustainable. In the circumstances, the impugned Order is set aside and all the three appeals allowed. 5. By the order dated 30-11-2010 [2011 (270) E.L.T. 395 (Tri. -Del.), passed by the Customs, Excise Service Tax Appellate Tribunal, Principal Bench, New Delhi under challenge in this Appeal for the same period on identical notice and issue, the Appellate Tribunal did not find any infirmity in the adjudication order of the Commissioner. 6. Learned counsel for the appellant submits that on the same facts and notices, the Appellate Tribunal of the Principal Bench at New Delhi could not have come to different conclusion. He submits that the opinion expressed by the CESTAT, Bangalore was placed before the CESTAT, New Delhi. The CESTAT, New Delhi has justified its order for the following reasons :- 82. In fact, it is also evident from the order passed by the Bangalore Bench itself and particularly in para 8 thereof wherein it has been stated thus :- 8. The ld. Spl. Counsel for Revenue relied on case laws to support the view that there was manufacture in the process described and cited (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity amounting to manufacture, there was no justification for invocation of extended period of limitation. As regards the contention about absence of manufacturing activities, as already held above the activities carried out by the appellants in the premises at Rampur clearly disclosed that the same were in the nature of manufacturing activity. Being so, there was no occasion for the appellants to harbour any belief that such activity did not amount to manufacture. In fact, the situation was made clear in their own case and the decision in Xerox Modicorp Limited was very clear in that regard. Inspite of the above fact, the relevant information was suppressed from the department and they misdeclared their activity as trading activity and thereby willfully indulged in contravention of the provisions of the said Act and the Rules made thereunder with intent to evade the duty payable on those goods. Obviously, therefore, the authorities were justified in invoking extended period of limitation. 85. As regards the claim for cenvat credit, obviously, the assessee has to comply with the provisions of law for claiming such benefit. No material on record has been pointed out which would rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llation was carried out beyond territorial jurisdiction of Meerut Commissionerate once it is established that the major activity of manufacturing in relation to such machines was carried out at Rampur which lies within the jurisdiction of Meerut Commissionerate, it cannot be said that Commissioner at Meerut had no jurisdiction to investigate and adjudicate upon the matter 7. Learned counsel for the appellant relied upon decision of the Supreme Court in Gammon India Ltd. v. Commissioner of Customs, Mumbai [2011 (269) E.L.T. 289 (S.C.)], in which similar situation has occurred. The Supreme Court, expressing its deep concern on the conduct of two Benches of the Tribunal, in deciding appeals taking contrary view, has held in para 24 as follows :- 24. Before parting, we wish to place on record our deep concern on the conduct of the two Benches of the Tribunal deciding appeals in the cases of IVRCL Infrastructures Projects Ltd. (supra) Techni Bharathi Ltd. (supra). After noticing the decision of a coordinate Bench in the present case, they still thought it fit to proceed to take a view totally contrary to the view taken in the earlier judgment, thereby creating a judicial uncer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law made by another Bench. It can only refer it to a Larger Bench if it disagrees with the earlier pronouncement. We respectfully concur with these observations and are confident that all the Courts and various Tribunals in the country shall follow these salutary observations in letter and spirit. 8. It is submitted by the learned counsel for the appellant that in the facts and circumstances, in which a similar notices and same facts and evidence was involved, the only course open to CESTAT, New Delhi, if it wanted to disagree with the opinion of CESTAT, Bangalore, was to refer the matter to a Larger Bench. 9. S.P. Kesarwani, learned counsel for the respondent-department submits that both the adjudicating authorities acted in their own territorial jurisdiction, and that the CESTAT, New Delhi, levied duty and penalty on the facts and evidence, as they were placed and as considered by the adjudicating authority. He submits that there is nothing wrong in the judgement of the CESTAT, New Delhi, where it discarded the contention of the appellant, after considering the reasons given by CESTAT, Bangalore, that the activities of the Company will fall within the meaning of manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
