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TMI Blog2023 (10) TMI 733X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacturer of the body-built vehicle, even though the Appellant supervises the quality of such body-built vehicles before clearance by body-builder. The Hon ble High Court held the body builders only to be the actual manufacturers. This judgment has been affirmed by the Hon ble Apex Court in U.O.I. VERSUS TATA ENGG. LOCOMOTIVE CO. LTD. [ 1996 (1) TMI 435 - SC ORDER] . Thus, the job-worker is the actual manufacturer and not the raw-material supplier. In the present case, the activity of building body on the chassis amounts to the manufacture of motor vehicles, in terms of the Chapter Note 5 of Chapter 87 of the Central Excise Tariff Act. Accordingly, the body builder has rightly paid excise duty at the time of clearance of bodybuilt vehicle to the RSO. Thus, the demand of duty from the Appellant is not sustainable and therefore, the duty confirmed in the impugned order is set aside. Appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... hence, no sales tax would be payable. 5. A SCN dated 01.10.2008 was issued on the Appellant, proposing to demand differential excise duty Rs. 21,27,34,334/- along with interest and equivalent penalty, by adopting the final price at which the bodybuilt vehicle is sold by the Appellant from RSOs as assessable value, on the following basis: a. Excise duty was not discharged in a correct manner because chassis were merely removed for undertaking processing thereon and were not sold to the body builders. b. The price charged by body builders was job work charges and not the price of the body-built vehicle. c. In the case of supply of body-built vehicles, transaction value should be the price charged by RSO from the buyers. 6. The Commissioner Jamshedpur decided the issue vide the impugned OIO dated 30.11.2009, wherein he confirmed the demand of excise duty along with interest and equal amount of duty as penalty on the Appellant, on the following grounds: a. RSOs qualify as place of removal for chassis as well as body-built vehicles. b. Body builders are merely job-workers fabricating the body and the Appellant does not sell the chassis to the body builders. Further, even the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gly, the impugned order held that the Appellant continued to be the owner of the goods throughout till it was sold from RSO, and the excise duty is to be paid only on the sale price of vehicle by the RSO, which is the transaction value. In the absence of sale of chassis to body builder and body-built vehicle by the body builder, the excise duty can only be levied at the point when the fully built vehicle is finally sold from Appellant's RSOs, since excise duty has direct nexus with sale. (vii) The above observations in the impugned order are in direct conflict with the provisions: * of Section 3 of the Excise Act, read with Rule 4 of the Excise Rules - which provides that the duty is payable on removal of goods from factory and not sale. * of Section 4(1)(b)of the Excise Act - which provide for valuation of goods cleared from the factory other than by way of sales. (viii) it is a settled law that in the case of job-work transaction, the jobworker is the manufacturer and not the raw-material supplier. In the Appellant own case, viz. Tata Engineering and Locomotive Company Ltd. v. UOI, reported at 1988 (35) ELT 617 (Pat.), the Hon'ble Patna High Court held that the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 900 (Tri. - Mumbai) * CCE, Indore v. Gwalior Chemicals Ind. Ltd., 2004 (172) E.L.T. 186 (Tri. - Del.) * C.M. Deshpande v. CCE, Mumbai-V, 2017 (346) E.L.T. 283 (Tri. - Mumbai) (xiii) Further, they submitted that the very same adjudicating authority who passed the present order, vide another order passed on the very same day for the proceedings pertaining to the period w.e.f. April 2007, recognized the body-builders only as manufacturers for the purpose of demanding excise duty as per Rule 10A of the Central Excise Valuation (Determination of Prices of Excisable Goods) Rules, 2000 vide Order-in- Original No. 46-48/Commissioner/09 dated 27.11.2009. Thus, the present proceedings reflect contradiction of stands adopted by the adjudicating authority in different periods and since it has been conclusively proved that the body-builder/ job-worker is the actual manufacturer and not the Appellant, who merely supplies the chassis, the impugned order confirming demand of excise duty on the Appellant in relation to the built-up vehicle manufactured by the body-builder is legally untenable. (xiv) They also submitted that the entire demand is barred by limitation as there is no suppressio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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