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TMI Blog2011 (7) TMI 675X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, Bangalore (in short CESTAT, Bangalore), vacated the demand and penalty on the Company, and the personal penalties imposed on the executives of the Company on the findings recorded in its order dated 9-11-2009 - 2010 (252) E.L.T. 273 (Tri. -Bang.), as follows :- "We observe that XIL imported Xerox brand photocopiers of different models in CKD form including printers. These consignments on import were received in the warehouse of the Appellants at Hyderabad and Rampur. The major component called "work centre" and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Revenue are totally irrelevant. 6. The learned Spl. Counsel argued that the components imported were assembled in the warehouse by kitting and this operation using the computer system was assembly, though not in a physical sense. This logic seeks to support the finding of the Commissioner that XIL assembled components in the warehouse. However, we find that in a case involving parts of copier machines process of manufacture can only be a physical process. A computer cannot produce any tangible goods su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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) Xerox Modicrop. Ltd. v. CCE, Meerut-II [2001 (130) E.L.T. 219 (Tri.-Del.)], (ii) Tanzeem Screenarts v. CCE, Mumbai-I [2006 (196) E.L.T. 209 (Tri. Mumbai)] and (iii) Commissioner of C. Ex. Coimbatore v. VXL Systems [2009 (235) E.L.T. 109 (Tri. Chennai)]. In these cases there were components manufactured and/or components assembled by the assessee concerned to make complete machine. In the case on hand the parts found to have been fitted to the main module were not dealt with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 reveal entitlement for such benefit to the appellants at this stage. Submissions are required to be made on the basis of actual foundation which are very much lacking in the case in hand in relation to the said contention on behalf of the appellants. It would be for the assessee to establish that they had complied with the requirements of the provisions of the Cenvat Cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 uncertainty with regard to the declaration of law involved on an identical issue in respect of the same Exemption Notification. It needs to be emphasised that if a Bench of a Tribunal, in identical fact situation, is permitted to come to a conclusion directly opposed to the conclusion reached by another Bench of the Tribunal on earlier occasion, that w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 manufacturing. 10. We are informed that an appeal against the order of the CESTAT, Bangalore is pending in the Supreme Court, in which no interim orders have been passed. 11. We have considered the respectful submissions, and find that there are contrary opinions expressed by the Tribunals on the same facts and evidence, which were placed b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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