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TMI Blog2023 (6) TMI 1240X X X X Extracts X X X X X X X X Extracts X X X X ..... he charging was carried out at the dealers place which activity amounts to manufacture. Therefore, any goods cleared which is subjected to further manufacture should be valued under Section 4 and not 4 A - It is found that other than affidavit there is no documentary evidence produced by the appellant to establish the claim of the appellant that the battery was cleared uncharged and at the dealers place the batteries were charged before selling to the customers. From the finding of the Adjudicating Authority it is clear that except affidavit there is no other evidence to show that the battery cleared by the appellant was uncharged Lead Battery. Therefore, there is no difference in the nature of the clearance made to individual customer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents and assemblies of automobiles falling under any chapter heading was to be subjected to Retail sale Price (RSP) based assessment, with a specified abatement of 33.5% from the RSP vide entry No. 97 to the Notification No. 11/2006 CE (NT) dated 29.05.200. Subsequently, for the same entry abatement percentage of 31.5% was re-specified vide the entry No. 107 under Notification No. 14/2008- CE (NT) dated 01.03.2008 and later on it was re-specified to 30% vide entry No. 108 of the Notification No. 49/2008- CE (NT) dated 24.12.2008. 1.2 Based on the intelligence that the appellant were clearing their manufactured goods Viz. Lead Acid Batteries by assessing them under Section 4 of the Central Excise Act, 1944 instead of Section 4A of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) who concuring with the view taken by the Adjudicating Authority upheld the order of the Adjudicating Authority and rejected both the appeals filed by the appellant. Therefore, the present appeals. 2. Shri Paresh Sheth, Learned Counsel appearing on behalf of the appellants submits that the appellant have been valuing their Lead Acid Batteries supplied to individual customers under Section 4 A whereas in case of supplies made to the dealer, they value the batteries under Section 4 for the reason that the batteries supplied by the appellant to dealers are not ready to use as at the dealer stage the batteries are required to be charged by adding acid into batteries. He submits that the activity of putting acid and water in the batteries an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22 (382) ELT 188 (Cal) 3. Shri Rajesh K Agarwal, Learned Superintendent (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order. 4. We have carefully considered the submission made by both sides and perused the records. The limited issue to be decided is that the Lead Acid Batteries cleared by the appellant whether the value thereof should be determined under Section 4 or Section 4 A of Central Excise Act, 1944. The entire defence of the appellant is on the basis of the affidavit which was filed belatedly that the Lead Acid Batteries cleared by the appellant which is used for automobiles were correctly valued under Section 4A on the ground that they had supplied the uncharged batteries and the charging wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt, as well as various documents relied upon in the SCN. I have also gone through the affidavit filed by Shri Navneet M. Pansara, Director of the notice No. 1 (notice No. 2 in the present case). It is sworn in by the notice No. 2 that the batteries so manufactured and sold were without undertaking the process of battery charging which is to be carried out by the dealer only before delivering the said batter to the customer for their use. In other words, the said batteries are cleared in dry condition and cannot be used for any purpose in as is condition. It is also sworn by the notice No.2 that during the relevant time his company was not equipped with the required facility and therefore could not have carried out such process. The versio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as Panchnama shows that Sulphuric Acid and D.M. water are added (container filling) to manufacture batteries. Therefore, it cannot be said that the batteries manufactured by the noticee No. 1 were dry batteries. (v) In order to ascertain general practice prevailing in trade and industry, an inquiry was made with M/S. Atul Auto Ltd, Shapar (Veraval), Rajkot, who is leading manufacturer of three wheeler auto rickshaw vide letter dated 12.11.2012, they confirmed that they are buying battery from M/s. Exide Industries Ltd, Pune, which is including acid and charged and fitted directly in their vehicle without any process by them. It is clear from the above that the affidavit filed by the noticee No. 2 is only an afterthought a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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