9911796707
TMI Blog2012 (12) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... here is also a spare parts division of JCB - JCB (SPD). While JCB as manufacturing unit have Central excise registration the JCB (SPD) does not have any Central Excise registration. M/s. Tubewell Workshop & General Industries, Faridabad (hereinafter referred to as TWGI) is a partnership concern engaged in job work and Shri G.R. Sharma, is a partner of TWGI. JCB and - JCB (SPD) received duty paid forgings for certain parts of earth moving machinery. These forgings are classifiable under Heading 7326. These forgings were sent by JCB and JCB (SPD) under job work challans/returnable store despatch vouchers to TWGI, who did the machining and drilling of holes on the same. The forgings after being subjected to these processes could be used as par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove show cause notice was adjudicated by the Commissioner, Central Excise, Delhi-IV vide order-in-original dated 26-11-2007 by which :- (a) the duty demand of Rs. 1,55,85,156/- was confirmed against TWGI under proviso to Section 11A(1) of Central Excise Act, 1944 alongwith interest on this duty at the applicable rate under Section 11AB ibid; (b) penalty of Rs. 1,55,85,156/- was imposed on TWGI under Section 11AC; and (c) penalty of Rs. 25,00,000/- each was imposed on JCB and Shri G.R. Sharma, Partner of TWGI under Rule 26(1) of Central Excise Rules, 2002. 1.3 Against the above order of the Commissioner, these three appeals alongwith stay applications have been filed. 2.& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le the period of demand is from 1st April 2005 to 31st March 2008, the show cause notice has been issued on 30th April, 2010, that all the transactions regarding receipt of rough forgings from JCB/JCB (SPD) for job work were recorded in the books of accounts of TWGI and, hence, in terms of judgment of Apex Court in the case of Padmini Products v. CCE reported in 1989 (43) E.L.T. 195 (S.C.) and Gopal Zarda Udyog v. CCE, New Delhi reported in 2005 (188) E.L.T. 251 (S.C.), the allegation of wilful misstatement or suppression of fact cannot be made against TWGI and extended period cannot be invoked for demand of duty, that for the same reason, no penalty can be imposed on TWGI or its partner Shri G.R. Sharma, that since no duty has been evaded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period and penalty has been correctly imposed on TWGI and their partner Shri G.R. Sharma and on JCB and in view of the above, the balance of [convenience] is not in favour of granting waiver from the requirement of pre-deposit or staying the recovery thereof during pendency of these appeals. 5. We have carefully considered the submissions from both the sides and perused the records. 6. Prima facie, we find that the goods received by TWGI are rough forgings classifiable under Heading 7326. There is no dispute about the fact that the products which emerges after being subjected to machining and drilling of holes by TWGI are clearly identifiable as a part of excavators and can be directly used, as such, and the same are classifiabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... weeks from the date of this order. As regards Shri G.R. Sharma and JCB are concerned, they are directed to deposit an amount of Rs. 5,00,000/- (Rupees Five Lakhs) each towards penalty within a period of eight weeks from the date of this order. Compliance to be reported on 25-6-2012. On deposit of this amount within the stipulated period, the requirement of pre-deposit of balance amount of duty demand, interest and penalty from TWGI and the requirement of pre-deposit of balance amount of penalty from Shri G.R. Sharma, Partner of TWGI and JCB would stand waived and recovery thereof stayed till the disposal of the appeals. The stay applications stand disposed of as above.
(Pronounced in the open Court on 16-4-2012) X X X X Extracts X X X X X X X X Extracts X X X X
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