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TMI Blog2016 (8) TMI 1063X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the appellant that the value which has been considered, if it is, the transaction value as per the invoice, then the benefit of cum duty has to be extended to the appellant, is the law settled by various High Courts and even in the case of Larsen and Toubro Ltd., the Bench had extended such a benefit. Having held so, we find that the quantification of the duty after extending cum duty benefit needs to be redone by the lower authorities. Cenvat credit - CVD paid by the appellant on goods imported - Held that:- if the appellant is saddled with the central excise duty on the ground of deemed manufacture , the pars which have been imported by the appellant in bulk, if they have suffered CVD, the benefit of cenvat cannot be denied as the same parts are considered as manufactured on repacking and central excise duty is paid. Therefore, the appellant is eligible for cenvat credit of the CVD paid, subject to production of duty paying documents/bills of entry on the parts which were imported, repacked and sold. Requantification of demands - Held that:- the adjudicating authority will also work out the interest liability on the main appellant. Since the penalty imposable is on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the contentions raised and by the impugned order, confirmed the demands raised along with interest and imposed penalties on both the appellants. 3. The learned counsel appearing on behalf of the appellant, after giving us overall picture of the demands raised, would submit that the demand is for the parts of dumpers and parts of others and is fully within the partly extended period. He would take us through the entire legislative intent and submit that the items/parts which are repacked are not parts of automobiles to fall under Third Schedule and/or Section 4A Notification. It is his submission that there was a drafting error and these items were not included in the Third Schedule but were included in the Section 4A Notification. He would then take us through the definition of motor vehicle and construction equipment vehicle under the Motor Vehicles Act, Air Pollution (Prevention and Control) Act and submit that these are not at all relevant as these statues are not pari materia to the taxing statute and hence the reliance placed by the adjudicating authority on these statutes are totally incorrect to confirm the demands raised. He would submit that the adjudicating authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Hon ble High Court within the limitation period. It is his submission that personal penalty imposed on the employee of the appellant is not at all justified, hence it may be dropped. 5. The learned departmental representative, on the other hand, would take us through the entire order-in-original. He would submit that the term automobiles and various definitions in the Motor Vehicles Act and the Rules made thereunder, an automotive aspect of the vehicles and the machinery aspect has been considered by the Larger Bench of the Hon ble Supreme Court in the decision of Western Coalfields Ltd. (supra) and held that excavators are motor vehicles under the Motor Vehicles Act. He would submit that the product literature of the parts manufactured by the appellant indicates that the vehicles are self-propelled, either on rubber/pneumatic wheels or steel drum wheels and hence they are all automobiles and the parts manufactured by the appellant would fall under the category of parts of automobiles for applying the demand of the duty under Section 4A of the Central Excise Act, 1944. He would submit that automotive vehicles may be classified under Chapter 84 or 87 but did not lose the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... components and assemblies are either imported by them or procured from a local associate of a foreign company, namely, Komatsu; and procured locally from the manufacturing facilities in Pune/Bangalore. Parts, components and assemblies of automobiles are covered in the third schedule to the Central Excise Act which is required to be read with Section 2(f)(iii) of the same Act. Further, parts, components and assemblies are also specified by notification for purpose of valuation under Section 4A. The appellants contention is that earlier mentioned earth moving vehicles/equipments are not automobiles and therefore parts, components and assemblies being dealt with by them are not covered under Section 2(f) (iii) read with third schedule or Section 4A. The other contention of the appellant is that even if the goods dealt with by him are covered by parts, components and assemblies of automobiles, even in that situation, as far as unpacked goods, parts are concerned, the activity undertaken by them will not amount to manufacture and, therefore, there cannot be any duty liability in respect of unpacked goods. ( emphasis supplied ) It can be seen from the above reproduced paragrap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported, we find strong case in favour of the appellant as it has to be held that if the appellant is saddled with the central excise duty on the ground of deemed manufacture , the pars which have been imported by the appellant in bulk, if they have suffered CVD, the benefit of cenvat cannot be denied as the same parts are considered as manufactured on repacking and central excise duty is paid. On this point also, we hold in favour of the appellant that they are eligible for cenvat credit of the CVD paid, subject to production of duty paying documents/bills of entry on the parts which were imported, repacked and sold. For verification of the claim of the CVD, we remand the matter back to the adjudicating authority to requantify the demands after extending the eligible cenvat credit to the appellant. 11. After requantification of the demands as indicated in paragraphs 9 and 10, the adjudicating authority will also work out the interest liability on the main appellant. Since the penalty imposable is on the main appellant is dependent upon the quantum of duty liability, we also direct the adjudicating authority to consider the quantum of penalty to be imposed on the appellant after ..... X X X X Extracts X X X X X X X X Extracts X X X X
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