9911796707
TMI Blog2014 (4) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... cating Commissioner for non-prosecution. Subsequently, vide Tribunal's Final Order No.A-85-87/KOL/2012 dated 14.02.2012, all the Appeals were dismissed for non-compliance with the Predeposit Order. The Applicant firm, M/s. Polar Industries filed a Miscellaneous Application before the Tribunal to recall/modify the above Tribunal's Orders. Miscellaneous Application was dismissed by this Tribunal's Order No.M-598/KOL/2012 dated 25.10.2012. Being aggrieved, the Applicant firm filed a Writ Petition No.27(W) of 2013 before the Hon'ble High Court, vide its Order dated 16.01.2013, the Hon'ble Court directed the Tribunal to consider the impugned Miscellaneous Application afresh, in the light of the observations made in the Order dated 16.01.2013 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 982/- [shown in Annexure-C(1)] relates to the fans cleared after their repair/re-conditioning under Rule 16 of the Central Excise Rules. However, the Department has alleged that no repairing activity took place, but fresh fans were manufactured and removed in the guise of repaired fans. 4.2. Demand of Rs.2,299.81 (i.e.Rs.2300/-) [as per Annexure-C(3)] is attributable to shortage of finished goods found on physical verification and when compared to the stock of fans recorded in their daily stock account during the visit of the Officers on 09.02.2005. 4.3. Demand of Rs.2,53,525/- [raised in Annexure-C(4)] is on account of shortage of ball bearings and non-return of the bearings from job workers even after its expiry of six months. 4.4. Dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons to be followed. It is stated that even though the Department was fully aware of the practice followed, it never prescribed any condition. The ld. Advocate cited various judgments holding that activity of repair does not amount to manufacture. He submitted that even if it is held that returned goods were subjected to manufacture in the Applicant's factory, the Applicant firm was eligible for credit of Rs.27,74,868/- paid as duty on the said fans, when removed originally. The ld. Advocate further submitted that for the repairing at the factory, they used various duty-paid inputs/spares and reversed the credit aggregating to Rs.6,89,225/- involved on such inputs and spares. It is the contention that the benefit of repairing/reconditioning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere prepared only for the financial adjustment of the short receipt while receiving defective fans etc. He explained that this plea has not been accepted by the Adjudicating Authority. 6. Per contra, ld. AR for the Revenue reiterated the findings of the ld. Adjudicating Commissioner. 7. We find that the issue involved in the present case is whether the fans which were purportedly cleared by the Applicant Firm as a repaired/re-conditioned one, show any correlation with the defective fans received at the service centre or not, and whether the conditions of Rule 16 in the event of repairing/re-conditioning are satisfied in this case or not. We find that the Order of the ld. Commissioner gives a general remark that there has been no correlati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered the fact that rejection is bound to take place during manufacture and the evidences adduced by the Applicant/Appellant before him, were discarded. The Applicant/Appellant has categorically stated that even the stock-taking report refers to rejection of the bearings and therefore, such rejection reflected in their books of accounts, should be considered before arriving at their shortage. In case of duty demanded (in Annexure-C-5) on spares shown to be removed under private challans, the ld. Advocate submitted that it was only a financial adjustment. It is submitted that many times, the defective fans for repair were sent by the Branches in dismantled form, in some of specific cases, some specific components/spares were short received fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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