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TMI Blog2023 (10) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... he scope of Sl. No.100 of the Third Schedule to the Central Excise Act, 1944, relevant material it has been observed by the Larger Bench in M/S. ACTION CONSTRUCTION EQUIPMENT LTD, SHRI P.K. BANSAL, SHRI VIJAY AGARWAL, COMMISSIONER OF CENTRAL EXCISE, M/S. JCB INDIA LTD., TATA HITACHI CONSTRUCTION MACHINERY CO. LTDM, LARSEN TOUBRO LIMITED, J. KUMAR, M/S. PROFICIENT EQUIPMENT SOLUTIONS VERSUS COMMISSIONER, CENTRAL EXCISE, CUSTOMS, DELHI-IV, M/S. JCB INDIA LTD., THE COMMISSIONER, CENTRAL EXCISE, AND CUSTOMS, NAGPUR [ 2023 (6) TMI 1320 - CESTAT MUMBAI (LB)] that The amendment made in the Third Schedule to the Central Excise Act by Finance Act, 2011 w.e.f 29.04.2010 by adding serial No.100A to the Third Schedule is prospective in nature. Distinguishing the said ratio, the Revenue has argued that the equipment considered in the said judgment are different and hence, the principle laid down in the said judgment cannot be made applicable to the facts of the present case. It was argued that the Mumbai Bench of the Tribunal specifically considered parts of the dumpers in M/s. Komatsu India Pvt. Ltd., therefore, the said judgment be followed and applied to the present case. The said approach o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be sustained - there are no reason in not following the judgment of the Tribunal in appellant s own case more or less for a similar period and show-cause notice issued in the same month i.e., April 2013. In the result, invoking of extended period of limitation is bad in law. Thus, invoking of extended period of limitation is bad in law. Accordingly, the demand be confined to the normal period of limitation. Consequently, the penalties imposed on the appellants, in the facts and circumstance of the case is unwarranted. Consequently, penalty imposed on all the appellants are set aside. Appeal disposed off. X X X X Extracts X X X X X X X X Extracts X X X X ..... tomers or stock transferred to the Regional Offices or supplied to the customers based on their requirements. The value adopted for sale of spare parts from the Marketing Division of the appellant is based on the pricelist available/generated in the ERP system. From May 2012 onwards, the system generated STD prices which are considered in case of stock transfer to Regional / District Offices from where the goods are sold to the customers. 2.1 The Ld. Advocate further submitted that the appellant had considered the said activity of re-packing and relabelling undertaken by them do not result into manufacture; accordingly, no duty was paid on sale of the spare parts. He has submitted that all spare parts are cleared to the industrial and institutional consumers only. 2.2 The learned advocate has submitted that the Third Schedule to the Central Excise Act, 1944 was amended in 2006 so as to bring within the scope of Section 2(f)(iii) of the Central Excise Act, 1944, the activities of repacking and relabelling of parts of Automobiles, as amounting to manufacture. Provision under Section 66(b) of the Finance Act, 2006 was brought into with effect from 01.6.2006. In the said amendment th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (SC), it is argued that any activity which brings in any change in the character of the article thereby making the product marketable would have to be construed as amounting to 'manufacture'. In the appellant's case since the spare parts were finished, functional and marketable condition and does not add any additional value to the product and make it marketable to the consumer; hence, the activity undertaken by the appellant cannot be treated as 'manufacture' under the main definition of Section 2(f) of Central Excise Act, 1944. Further, he has submitted that imposition of penalty on the appellant is not sustainable. 3. Learned Authorised Representative for the Revenue reiterated the findings of the learned Commissioner. Rebutting the arguments of the appellant referring to the Larger Bench Decision in Action Construction Equipment Ltd 's case (supra) that Entry at Sl. No.100 in the Third Schedule prior to its amendment was only applicable to "parts, components and assemblies of automobiles" and not to the spare parts of Dumpers as it fall outside the scope of 'automobiles', the learned Authorised Representative submitted that the products in the present appeal were not considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the appellants had been carrying out the activity of manufacture even after it was brought under the scope of levy of excise duty, without taking registration and cleared goods without payment of duty; thus, the confirmation of the demand invoking extended period by the learned Commissioner is justified and sustainable. 4. Heard both sides and perused the records. 5. The short question involved in the present appeal for determination is: whether the activity of packing, repacking, relabelling of spare parts of automobiles, mechanical drive and electrical drive fall within the scope of definition of 'manufacture' prescribed under Section 2(f)(iii) of the Central Excise Act, 1944 during the period January 2008 to March 2011. 5.1 The period of dispute can conveniently be divided according to the amendment carried out to the relevant entry at Sl. No. 100 of Third Schedule; (i) from January 2008 to February 2010, and (ii) March 2010 to March 2011. 5.2 Before analysing the above issue, it is necessary to reproduce the relevant provisions of the Central Excise Act, 1944. Section 2(f) of the Central Excise Act, 1944 [(f) "manufacture" includes any process, - (i) incidental or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Action Construction Equipment Ltd. case. 5.4 The Larger Bench was constituted pursuant to a direction of the Hon'ble Supreme Court, as there were conflicting views expressed by the Mumbai Bench of the Tribunal in the case of CCE, Pune-I vs. JCB India Ltd.: 2014 (312) ELT 593 (Tri.-Mum.) and Chandigarh Bench of the Tribunal in the case of M/s. Action Construction Equipment Ltd. & Ors. Vs. CCE, Delhi-IV: 2016 (10) TMI 473- CESTAT CHANDIGARH in Excise Appeal No.791 of 2012. After analysing the scope of Sl. No.100 of the Third Schedule to the Central Excise Act, 1944, relevant material it has been observed by the Larger Bench as follows: "89. What follows from the aforesaid discussion is that the earth moving machines involved in the present appeals are not 'automobiles'. It would not be appropriate to borrow the meaning of the word 'automobile' or 'motor vehicle' under the Motor Vehicle Act, 1988 or the Air (Prevention and Control of Pollution) Act, 1981 merely because the word 'automobile' has not been defined in the Central Excise Act, Central Excise Tariff Act or the Notifications issued by the Central Government. In such a situation, it would be appropriate to refer to the dic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opted but the meaning has to be understood is in general sense and as used in common parlance. Further, emphasizing the said meaning as in common parlance, the Larger Bench opined that the scope and meaning of 'automobiles' be understood as the conveyances for transportation of passengers and goods on road; also in the same manner, it has been understood by the department in various Circulars issued from time to time. Further, it is also held that the amendment brought into effect from 29.04.2010 is prospective. Hence, following the principles laid down by the Larger Bench in the aforesaid case, we do not see merit in the contention of the department that the ratio of the said judgment is not applicable to the facts of the present case. Consequently, Sl. No. 100 of the Third Schedule shall not be applicable to parts and spares of Dumpers repacked and relabelled by the Appellant for the period from January 2008 to February 2010. Also, the said activities do not fall within the scope of 'manufacture' under either clause (i) or (ii) of Section 2(f) of CEA,1944, hence, not leviable to excise duty. However, for the period from March 2010 to March 2011, the said activities be considered ..... X X X X Extracts X X X X X X X X Extracts X X X X
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