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TMI Blog2023 (9) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... in this Tribunal has observed In the facts of the present case, the goods as discussed above are falling under various chapter heading as proposed in the show cause notice are covered under Third Schedule and the activity which is undisputedly carried out by the appellants are packing in unit container, labelling with declaration of the MRP on the unit container are clearly covered under Section 2(f)(iii) therefore amounting to manufacture. It is seen that the goods are marketable as the same has been sold to M/s TSL on against the payment. Therefore, the said parts are marketable - the activity undertaken by the appellant amounts to manufacture. Consequently, the cenvat credit availed by the appellant, cannot be denied to the appellant. CE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto long term comprehensive maintenance and repair contracts ('MARC') with Tata Iron and Steel Company Ltd. ("TISCO") in relation to the heavy earth moving machineries (HEMM) like Rear Dump Truck, Dozers etc. procured by TISCO from M/s Caterpillar India Ltd. and M/s Caterpillar Singapore. 2.1 The appellant entered into a contract and as per the contract, the appellant was receiving considerations as R & M Spare Parts and Fees by paying VAT on the value of spare parts supplied from Excise Store and Spare consumed from non-excisable store. GET fees, on which the appellant paid VAT since this was for supply of spares of ground engaging tools. The Manpower fees, on which the appellant paid service tax since this was for pure labour charges and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the appellant alleging that the appellant is not engaged in the activity of manufacturing, therefore, they are not entitled to take cenvat credit. 2.4 The matter was adjudicated. The demand was confirmed by denying cenvat credit to the appellant and to impose equal amount of penalty. 2.5 Against the said order, the appellant is before us. 3. The ld.Counsel for the appellant submits that the activity of packing and re-labelling undertaken by the appellant qualifies as manufacture under Section 2(f)(iii) of the Central Excise Act, 1944. It is his submission that the definition of manufacture also includes following activity as 'deemed manufacture' in terms of Section 2(f)(iii) of Central Excise Act: - process involving packing/re-p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng etc. 3.3 It is his contention that the ld.Adjudicating Authority has observed that since TSL is only buyer of the appellant. Therefore, the appellant is not under any obligation to undertake any activity such as packing, re - labelling etc, so as to render the spare parts marketable. He, therefore, submits that it is a well settled position of law that test of marketability does not depend upon the number of buyers. It is submitted that even one purchaser is sufficient to meet the criteria of marketability. 3.4. To support of his contention, the ld.Cousel for the appellant relied on the following decisions : A.P. State Electricity Board v. CCE, Hyderabad - 1994 (70) ELT 3 (S.C.) CCE, Delhi- III v. Uni Products India Ltd - 2020 (37 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ." 8. We find that the parts in question are covered by Serial No.100A of the Third Schedule of the Central Excise Act, 1944. The said issue has been dealt by this Tribunal in the case of Mercedes Benz India Pvt. Ltd. (supra), wherein this Tribunal has observed as under : "7. From reading of the Section 2(f)(iii), it is seen that in respect of goods specified in Third Schedule activity such as packing or repacking of such goods in a unit container or labelling or relabelling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer amounts to manufacture. In the facts of the present case, the goods as discussed above a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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