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TMI Blog2019 (4) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... der and receiving the parts in bulk and sell them after consolidation by putting in polythene bags/wooden boxes/gunny bags as per the requirement of the buyers - the activity of packing/re-packing of the goods in a unit container amounts to manufacture. On going through the process undertaken by the appellant, we find that the appellant is not putting this packing/packed goods in a unit container. In fact, the appellant is packing the goods a bigger carton/gunny bags for ease of transportation to the place of the buyers and the buyers are selling these parts separately without any packing done by the appellant to the ultimate customers - the appellant is engaged in the activity of packing/re-packing of the parts/components of earthmovin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6-EX[DB] - FINAL ORDER NO. 60247-60251/2019 - Dated:- 21-2-2019 - Mr. Ashok Jindal, Member (Judicial) And Mr. Bijay Kumar, Member (Technical) Present for the Appellant(s): Mr. R.K. Hasija, Advocate Present for the Respondent(s): Mr. G.M. Sharma, AR ORDER Per Ashok Jindal : The appellants are in appeal against the impugned order wherein the demand of duty of ₹ 4,61,83,132/- has been confirmed against them on account of the activity undertaken by the appellants to manufacture for the period 2010-11 to 2011-12 by way of issuing the show cause notice dt. 08.12.2014. 2. The facts of the case are that the appellants are engaged in trading of parts of earthmoving equipment/excavators and receive parts in bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned. It is his further contention that the appellants import or procure different parts from the local market, put multiple different parts in a polythene bag and then put a number of polythene bags of different types of parts in a cardboard carton/ box and sell the same to the dealers/users. Ultimate sale of individual parts to the consumers/end-users by the dealers is only in the original packing supplied by the vendors. The goods sold by dealers after purchase from the appellants is never in the packing of HP/Hytech except a few items which are purchased by the appellants from the vendors with original packing of HP/Hytech such as seals and tooth point which are either imported or procured from manufacturers such as M/s Elofic Filt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... den packing for ease of transportation cannot be said to be packing or re-packing as the same is not meant for the ultimate consumers but only as a convenience of transportation for the dealers and shopkeepers for further selling them to the ultimate consumers in loose condition without any packing. Therefore, no process of packing/re-packing of goods in a unit container has taken place. He submits that as the goods are not in the unit container, therefore, the condition of Section 2(f)(iii) of the Act is not fulfilled and they are not liable to pay the duty. To support of his contention, he relied on the decisions in the cases of Sree Leathers vs. CCE, Kolkata-V 2012 (275) ELT 225 (Tri. Kolkata), Dodsal Corporation Pvt Ltd vs. CCE, B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal in the identical facts and circumstances followed the judgment of Hon ble Supreme Court in the case of J.K. Spinning Weaving Mills Ltd vs Union of India 1987 (32) ELT 234 (SC) and held that demand has to be within normal period as prescribed under Section 11A of the Central Excise Act, 1944. In that circumstance, demand is barred by limitation. He further submits that quantification has also not correctly done. In view of this, the impugned order is to be set aside. 6. On the other hand, the Ld. A.R. for the Revenue relies on the decision of M/s Larsen Toubro Ltd (supra). 7. Heard the parties and considered the submissions. 8. In this case, the facts of the case are not in dispute that the appellant is a tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f packing/re-packing of the parts/components of earthmoving equipments falling under Tariff 84264100, 8427, 8429 and 843010 of the First Schedule to the Central Excise Tariff Act, 1985, which has been put at Sl. No. 108 amending the Notification No. 49/2008-CE(NT) dt. 24.12.2008 under Section 4A as notified the items for the purpose of MRP valuation. However, these items were not brought under the ambit of Section 2(f)(iii) of the Act fiction of manufacture, it was only brought in the Finance Act, 2011 with retrospective effect under Section 73 of the said Act w.e.f. 29.04.2010 i.e. at par with amendment to Notification issued under Section 4A of the Act. However, again an error was committed by the Legislature by specifying the goods in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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