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TMI Blog2019 (5) TMI 1530X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner vide which he has confirmed the demand of Central Excise duty of Rs,1,63,26,036/- against M/s Padma Flashlights Pvt. Ltd. located at Roorkee, district Haridwar Uttrakhand along with imposition of penalty of identical amount. Further duty of Rs. 9,22,520 stands confirmed against M/s Mahalaxmi Industries located at Roorkee, district Haridwar, Uttrakhand along with imposition of penalty of identical amount. In addition penalty of Rs. 1 lakhs stand imposed on Shri T V Pradeep, Director as also on Shri Prakash S Kahadane, Director of the company. The seizures made at the said manufacturing unit also stand confiscated with an option to the appellant to redeem the same on payment of redemption fine. 2. As per facts on record M/s Pad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nits. The assembling by the Roorkee unit was nothing but eyewash inasmuch as the torches were fully manufactured in Bombay. The said movement of fully manufactured torches (though in unassembled condition) to Roorkee unit was with an intention to avail area based exemption. Accordingly, proceedings were initiated against the Roorkee Unit for confirmation of duty on the ground that the benefit of the notification stands wrongly availed by them. The proceeding initiated against them resulted in passing of present impugned order confirming demand of duty of Rs. 1.63 crores against M/s Padma Flashlights Pvt. Ltd. and of Rs. 9 lakhs against M/s Mahalaxmi Industries along with imposition of penalties as detailed in the preceding paragraphs. The s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of retail sale price. and have not been subjected to any other process or processes amounting to manufacture. 7. The Revenue's contention is that the said amendment carried out in Notification No.50/2003 made the Roorkee units unavailable to the exemption Notification inasmuch as the process undertaken by them, do not amount to manufacture. However, it is seen that even as per the Revenue's own case, as a result of investigations conducted by them, is that the Bombay factory is only clearing the head and body assembly of the torches which are being assembled at Roorkee. None of the processes detailed above stand undertaken at the Roorkee Units. The said amendment denies the benefit of the Notification only when the processes undertake ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and placed on Tribunal decision in the case of M/s Jayshree Industries V/s C.C.E. reported at 1993 (63) ELT 492 (Tribunal). 8. Learned Advocate has further pleaded that in terms of Note 6 of Section XVI, appearing in Chapter 84 & 85 there is a deeming fiction of manufacture, which stands prescribed as under:- "6. In respect of goods covered by this Section, conversion of an article which is incomplete or unfinished but having the essential character of the complete or finished article (including 'blank', that is an article, not ready for direct use, having the approximate shape or outline of the finished article or part, and which can only be used, other than in exceptional cases, for completion into a finished article or a par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e submissions made by both the sides as also on going through the impugned orders we find that the Revenue's entire case is based upon the fact that Mumbai unit of the appellant had manufactured head units and body unit of the torch which was assembled in Mumbai and it is only thereafter the same were again disassembled and transported to Roorkee. Roorkee units have only assembled the fully manufactured parts and have cleared the torches after claiming the benefit of the notification. The two units located at Roorkee were only manufacturing switches in question and were not in a position to manufacture the full torch. As against the above allegation the appellant has drawn our attention to the correspondence between them and Revenue establi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oorkee unit received complete torches and no manufacturing was done at their end, cannot be appreciated. 12. Apart from above, we also note that the assembling of various parts amounts to manufacture in terms of the provisions of Section 2(f) of Central Excise Act inasmuch as the same encompasses any incidental or ancillary activity. Even as per Note 6 of Section XVI the conversion of an incomplete article into a complete article would amounts to deemed manufacture. The Amending Notification No.01/2008-CE is applicable only in those cases where the processes undertaken does not amount to manufacture. Inasmuch as we have held that the activity at Roorkee was of manufacturing nature, the benefit of the Notification stands correctly availed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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