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TMI Blog2009 (1) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... 9/2004-CE dated 26/27-8-2004 passed by the Commissioner of Central Excise, Bangalore-III Commissionerate. 2. We heard both sides. 3. The brief facts are that the respondents received Old Transformers for repair. In the course of repair, they had to replace the coils, which are very essential for transformers. The case of the Department is that while repairing the old transformers, the coil emerges as a manufactured product. Hence, the respondents have to discharge the duty liability. This is mainly the case of the Revenue. The case was adjudicated by the learned Commissioner and the learned Commissioner, relying on several case-laws, came to the conclusion that there is no duty liability. In the Show Cause Notice, it is seen that the longer period had been invoked alleging suppression of facts, etc. However, the learned Adjudicating Authority has stated that there is no case for invoking the longer period and dropped the proceedings. Revenue is aggrieved over the impugned order. 4. The main contentions of the Revenue are briefly stated as follows:- (i) The Commissioner has relied on the decision of the Tribunal in the case of Punjab State Electricity Board v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this, the prayer of the Revenue is to set aside the order of the Commissioner. 5. The respondents have filed their cross-objections and they have produced large number of case-laws in their favour. They have also stated that in respect of all the inputs, which are used in the repair of the transformers, they are reversing the Cenvat credit taken. 6. We find that there are large number of case-laws, which hold that no new product emerges while repairing the transformers and while replacing the worn out coil with the new coil, which is formed only while at the time of repair. The following case-laws are tabulated below:- Sl. No. Case-laws Gist of citation 1. CCE v. KVK Control Panels - 2008 (226) E.L.T. 555 (Tri.-Bang.) = 2008 (12) S.T.R. 782 (Tri.-Bang.) Manufacture-Repair of old transformers by rewinding of coil not amounts to 'manufacture', no new distinct excisable product having come into existence-Section 2(f) of Central Excise Act, 1944. 2. CCE, Indore v. Gwalior Electrical Industries -2000 (122) E.L.T. 833 (Tribunal) Dutiability-Manufacture-Demand and penalty-Coils, LV/HV, made fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by assessee and marketable-Sections 2(d), 2(f) and 3 of Central Excises and Salt Act, 1944. Dutiability-Intermediate goods produced and used for captive consumption not liable to duty if not marketable, not withstanding the fact of their being specified in Tariff Schedule and retrospective amendment of Rules 9 and 49 of Central Excise Rules, 1944-Sections 2(d), 2(f) and 3 of Central Excises and Salt Act, 1944. 'Manufacture' or 'Production' means bringing out a new commodity which must be useable, moveable, saleable and marketable-Sections 2(f) and 3 of Central Excises and Salt Act, 1944. 6. Indian Cable Co. Ltd. v. CCE, Calcutta - 1994 (74) E.L.T. 22 (S.C.) Dutiability-Marketability of goods essential for their dutiability-A finding that goods are marketable is a pre-requisite or "sine qua non" for levy of duty-"Manufacture" by itself would not justify levy of duty-Marketable only means "saleable" of "suitable for sale" as it is i.e. without anything more-PVC compound whether dutiable, matter remanded-Sections 2(d), 2(f) and 3 of Central Excises and Salt Act, 1944-Item 15A of the erstwhile Central Excise Tariff. Interpretation of statute-Classific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dware Industries - 2007 (212) E.L.T. 509 (Tri.-Del.) Coils-Excisability-Coils fabricated and manufactured for repairs of transformers not excisable goods-Sections 2(d) and 3 of Central Excise Act, 1944. 11. CCE, Chandigarh v. S.D.O., Coil Fabrication Sub-Division, PSEB - 1993 (100) E.L.T. 229 (Tribunal) Manufacture-Aluminium and copper coils for transformers and wire not being known in market as separate distinctly identifiable commodities, process undertaken by assessee does not amount to manufacture-Product not excisable and not dutiable-Sections 2(f) and 3 of Central Excise Act, 1944. 12. CCE, Chandigarh v. S.D.O., Coils Fabrication - 1996 (87) E.L.T. 262 (Tribunal) Coils not excisable goods-Winding or wire around the core for required number of turns not results in emergence of marketable commodity-Coil not to be considered as 'goods'-Section 2(d) of Central Excises and Salt Act, 1944. The department has given some instance of sale of the coil by M/s. Associated Power Equipment Pvt. Ltd. and states that there is manufacture and marketability and duty is to be paid by the respondents. A stray case is not v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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