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TMI Blog2016 (9) TMI 936X X X X Extracts X X X X X X X X Extracts X X X X ..... especially when it is not the case of appellant that the same has not been stayed or overturned by higher courts. - Decided against the appellant - E/777 & 778/2008, 624 & 625/2009 - Final Order No. A/30643 to 30646/2016 - Dated:- 8-8-2016 - Ms. Sulekha Beevi, C.S., Member (Judicial) and Sh. Madhu Mohan Damodhar, Member (Technical) Sh. Karan Talwar, Advocate for the Appellant Sh. R.K. Dass, Assistant Commissioner (AR) for the Respondent ORDER The issue involved in these appeals being connected and identical, they were heard together and are disposed by this common order. 2. The facts of the case as put forth by the appellants are: (i) They are engaged in the activity of building body at their factory on the duty paid motor vehicles' chassis supplied to them as per the instructions from M/s Mahindra International Limited (hereinafter referred to as 'MIL') [April'07-October'07] and M/s Mahindra Navistar Automotives Limited (hereinafter referred to as 'MNAL' [November'07-September'08]. (ii) For this purpose they entered into agreement with MNAL and MIL for sale of body to be built on the chassis supplied to them by M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Advocate Sh. Karan Talwar appearing for the appellant fairly conceded that the issue involved in the case has been decided against the appellant and in favour of department by the Tribunal. However, the Learned Advocate proceeded to submit that these decisions are per incuriam as the Tribunal had not considered the Apex Court judgments relied upon by the appellants in those cases, in the correct perspective. He made the further following submissions: (a) In the above decisions, the Hon'ble Tribunals have failed to consider section 2(h) of the Central Excise Act, 1944 wherein the term sale has been defined to mean any transfer of the possession of goods by one person to another in the ordinary course of trade or business for cash or deferred payment or other valuable consideration. (b) Reference can be drawn to the decision of the Tribunal in the case of Indian Rayon and Industries Ltd vs. CCE [2007 (212) ELT 358 (Tri-Bang)] wherein the Tribunal had considered the eligibility of exemption under Notification No. 38/2003-CE on the ground that the job workers are not actually purchasing the goods, which is an essential condition for availing the notification benefit. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onger res integra and has been settled in favour of the department in a number of Tribunal judgments. He also placed reliance on Board's Circular 902/22/2009-CX dated 20.10.2009. 5. Heard both sides and have gone through the facts, evidence and judgments placed before us. 6. We find it for a fact that identical matter has been agitated in the Tribunal, which have decided the issue against the appellant in a number of cases: In the case of Audi Automobiles vs CCE [2010(249) ELT 124 (Tri- Del)] on identical facts, the Tribunal inter alia held as below: 21. In the facts and circumstances of the case, it is difficult to accept the contention that the work entrusted to the said firms was not to a job work within the meaning of expression under Rule 10A or that it was not the work on behalf of the principal manufacturer. In the facts and circumstances of the case, it is apparent that the said firms had cleared the goods in relation to the body fabricating and mounting on the chassis which were supplied to the said firms free of cost by the manufacturer of chassis. Being so, the activity for the purpose of valuation would squarely fall under Rule 10A and not under Rule 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A was not in existence. Therefore, we are of the view that the ratio of the said decision is not applicable to the present case. 17. The appellants also relied on the decision of the Tribunal in the case of CCE v. M/s. Innocorp Ltd. mainly on the ground the said decision was in respect of the interpretation of Rule 10A and the Tribunal had taken a view that for applicability of Rule 10A the definition should satisfy three requirements viz. (i) he should manufacture or produce goods; (ii) he should do it on behalf of a principal manufacturer; and (iii) he should do it from any inputs or goods supplied by the principal manufacturer or by any other person authorized by him. We find that the Tribunal in that case had examined the agreement between the assessee and Tupperware and all the clauses from (a) to (j) were examined by the Hon ble Tribunal and on the basis of which the Tribunal held that the second requirement with regard to on behalf of was not satisfied in that case and accordingly the case was decided in favour of the assessee. We find that in the present case the appellants are sub-contractors in relation to the body building activity on the chassis. Purchase Order a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words, they can urge that Rule 10A cannot be invoked or has been erroneously and incorrectly invoked and applied to a given transaction and case. All such contentions and based on the judgments which have been relied upon by Mr. Sridharan can be canvassed. We, therefore, need not express any opinion as to when Rule 10A could be said to be applicable. 64. Similarly, we do not wish to render a conclusive opinion as to what could be the situation in which it would be concluded that the excise goods are produced or manufactured by a job worker. If they are excisable goods produced or manufactured by a job worker but they are not on behalf of a person referred to as a principal manufacturer nor could the activity carried out be deemed as job work also because a person engaged in the manufacture or production of goods has not obtained any inputs or goods from the principal manufacturer or by any person authorised by him. In other words, no inputs or goods being supplied by the said principal manufacturer or any other person authorised by him the activity cannot be termed as job work within the meaning of the explanation. In that event it would be possible to urge that Rule 10A has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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