9911796707
TMI Blog2012 (7) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... xcisable and each sale of scrap was intimated to the department by the unit, allegation of suppression of fact against the appellant does not survive. - E/1806/04 & E/1674/06 - - - Dated:- 10-4-2012 - Mr. S.S. Kang, Mr. Sahab Singh, JJ. Shri J.C. Patel, Advocate, with Shri A.G. Kulkarni, C.A., for appellant Shri Navneet, Additional Commissioner (AR), for respondent Per: Sahab Singh These are two appeals, E/1806/04 and E/1674/06 filed by MSRTC s Central Workshop (hereinafter referred to as the appellants) against order-in-appeal No. BPS(124)89/2004 dated 19.3.2004 and order-in-appeal No. PI/473/05 dated 23.12.2005 passed by the Commissioner of Central Excise (Appeals), Aurangabad and Pune respectively. 2. The brief facts of the case are that the appellants are engaged in the manufacture of body building on new chassis and also component parts required for bus body building falling under Chapter 87 of the Central Excise Tariff. The appellants were also clearing some body components manufactured by them to their various divisional workshops for the purpose of repairing and maintenance of the old vehicles. The unit was visited by the officers of the dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers on excisability of contested goods. The appellants filed two appeals before the Tribunal against the Commissioner (Appeals) s orders in respect of the items figuring at sr.no. 1 to 8 and the Tribunal vide its order dated 27.7.1999 remanded both cases back to the jurisdictional Commissioner (Appeals) with the direction that he would examine whether the processes undertaken on the raw materials in this case did result in creation of excisable goods and on the basis of these findings, the Commissioner (Appeals) would be free to determine the marketability aspect as also the coverage of 11C notification. The Commissioner (Appeals), Pune vide the impugned order dated 23.12.2005 had decided the appeal in pursuance of the remand direction of the Tribunal and rejected the appeal against which the appellants are before the Tribunal. 4. The learned counsel appearing for the appellants submitted that they are engaged in the activity of bus body building for their own buses which are used for running the State Road Transportation and for the purpose of building bus bodies, the appellants received metal sheets, bars, angles etc. which are subjected to the process of cutting, bending, ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and without any contrary evidence relied upon by the Commissioner (Appeals), there is no reason for him to give a different finding. He contended that the burden is on the department to prove that the goods in question were marketable. 6. The learned counsel submitted that as regards the order-in-appeal passed by the Commissioner (Appeals), Pune, this order has been passed in remand proceedings in pursuance of the Tribunal s order dated 27.7.1999 and the Tribunal had given a specific direction to decide the issue whether the processes amount to manufacture and whether the components are marketable. He submitted that the Commissioner (Appeals) has stated that merely because the goods are not bought and sold in the market does not make them non-marketable and the fact remains that the appellants are supplying the same to the various divisions. He contended that there is no evidence to show that a market existed for the goods in question and the mere fact that the goods are being used for their own buses in various divisions does not establish the marketability of the components. He relied upon the following case law in support of his contention:- a) Hindustan Ferodo Ltd. v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the captive use only and the crucial fact relevant for consideration of these proceedings was distinct from that in the relevant decision dated 27.12.1993. Similarly, he contended that the scrap generated during the process of manufacture is liable to central excise duty in respect of Aurangabad unit. He also relied upon the following decisions in support of his contention:- a) Ford India Private Ltd. vs. CC, Chennai 2008 (228) ELT 71 (Tri.-Chennai); b) Bharat Sanchar Nigam Ltd. vs. UOI 2006 (2) STR 161 (SC); c) A.B. Mauri India Pvt. Ltd. vs. CCE, Pune-II 2010 (260) ELT 424 (Tri.-Mumbai); d) CCE, Jaipur vs. Hindustan Zinc Ltd. 2004 (166) ELT 145 (SC); e) Medley Pharmaceuticals Ltd. vs. CCE, Daman 2011 (263) ELT 641 (SC), and f) CCE, Meerut-II vs. Sundstrand Forms P. Ltd. 2011 (271) ELT 326 (SC). He submitted that in view of these decisions, the appeals filed by the appellants deserve to be rejected and the impugned orders are liable to be upheld. 9. We have gone through the submissions made by both sides. We find that in case of unit in Aurangabad Commissionerate, a show cause notice dated 5.8.1993 was issued to the appellant for denying their claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e process undertaken by the appellant in their Central Workshop and Divisions and has held these goods as excisable. On the point of marketability, the Commissioner (Appeals) has held as under:- As regards marketability, I find it is well settled law that merely because goods are not bought and sold in the market does not make them non-marketable and fact remains that they are supplying the same to their various divisions. 12. The Revenue relied on the decision in the case of CCE, Jaipur vs. Hindustan Zinc Ltd. (supra). In that case, a lead sheet fixed with header acts as positive electrode (anode) and an aluminium sheet fixed with header acts as negative electrode (callode). It was held by the Tribunal that these headers are not manufactured goods and it was further held that these headers are marketable. It was observed by the Apex Court that when product is bought in market by one M/s. Cominico Binani Zinc Ltd., this shows the product is marketable. In the case before us, the product is not bought by any party and, therefore, this case is distinguishable. 13. In the case of Medley Pharmaceuticals Ltd. vs. CCE, Daman (supra), the issue before the Hon ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wise one cannot get it in the market because at present it is not a commercially known product. For these reasons, the plastic body, which is a part of the EMR of the respondents, is not 'goods' so as to be liable to duty as parts of EMR under para 5(d) of the said exemption notification. The products, components of bus bodies made by the appellant are not available in market. The Revenue has not provided any evidence that the products were sold by the appellant in the market. These components are made for specific use in bus bodies made by the appellant. 16. We also find that the Hon ble Supreme Court in the case of Board of Trustees vs. CCE, A.P. 2007 (216) ELT 513 (SC) has observed as follows:- 3. Therefore, the principal question involved in this civil appeal relates to exigibility of Cement Concrete Armour Units. At the outset we may state each of these units weight is about 50 metric tones. They are like Tripods which also keep the water calm and tranquil. In order to constitute goods twin tests have to be satisfied, namely, process constituting manufacture and secondly marketability. In the present case the second test of marketability is in issue. It is well-set ..... X X X X Extracts X X X X X X X X Extracts X X X X
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