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TMI Blog2024 (3) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... g substantial question of law or perversity made out. On this very ground, there are no merits in the appeals preferred by the appellant. In the teeth of the aforesaid finding by the Tribunal and that no sufficient material available with the Department to negate the said finding given by the Tribunal, it is difficult to interfere with the said finding of the Tribunal. All these appeals filed by the Department therefore being devoid of merits, deserves to and are accordingly rejected. Appeal dismissed. - HON BLE SRI JUSTICE P. SAM KOSHY AND HON BLE SRI JUSTICE N. TUKARAMJI For the Appellant/Department : Mr. Dominic Fernandes, Learned Senior Standing Counsel for CBIC appearing. For the Respondent/Assessee : Mr. Narendra Dave, Learned Counsel Representing Mr. Lakshmi Kumaran Sridharan, learned counsel. COMMON JUDGMENT (PER HON BLE SRI JUSTICE P. SAM KOSHY) These are eleven appeals where the question of law agitated and the assessee is also common. Therefore, we proceed to decide all the appeals together by a common order. 2. Heard Mr. Dominic Fernandes, learned Senior Standing Counsel for CBIC appearing for the appellant/Department and Mr. Narendra Dave, learned counsel representin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, 1998. The show cause proceedings initiated in respect of the demand of duties and further in respect of penalties under Rule 9(2), 57(A) and 173Q of the Central Excise Rules finally stood decided vide common order dated 15.02.1999 by the Commissioner, Central Excise vide Order-in-Original (Denovo) C. Ex. No. 6 to 16/99. Vide the said order, the Commissioner, Central Excise, confirmed a demand of Rs. 7,22,93,324.00/- towards duty not paid and in addition, a penalty of Rs. 75,00,000/- was also imposed. It was this order which was subjected to challenge in an appeal before the Tribunal by the assesse and the Tribunal vide the impugned order dated 29.08.2003 allowed the appeal setting aside the order of the Commissioner holding that the stators used in compressors by the assessee would not attract Central Excise Act. There was no sufficient material to show that it was a manufactured product at the hands of the assessee. Initially, the Department challenged the order of the Tribunal by way of a Central Excise Appeal before the High Court and the High Court vide its judgment dated 02.05.2008 held that the appeal filed by the Department would not be maintainable under Section 35G of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice Centre. In the absence of any cogent material to substantiate this fact, the order of the Tribunal does not warrant interference. 11. At this juncture, learned Senior Standing Counsel for CBIC appearing for the Department contended that even if we hold that the process of shaping, varnishing and baking was being outsourced by way of job work, there were other incidental and ancillary activities carried out with the stators before it was affixed to the compressors making it usable and therefore the other activities carried out other than shaping, varnishing and baking at the Service Center has to be taken note of enabling them to be brought within the definition of Section 2(f) under the Act. 12. However, when we look into the findings of the Commissioner, vide OIO dated 15.02.1999, the finding is predominantly so far as the stators being subject to undergo the process of shaping, varnishing and baking is concerned. The OIO does not reveal an iota of material or evidence dealing with any other activity or manufacturing process other than shaping, varnishing and baking is concerned. The OIO is also silent on the aspect whether beyond 01.05.1992 the assessee still continued the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ried it out the same at their premises also simultaneously, since it was fairly submitted by the Advocate for the appellants that this Out Servicing was done on advice and understanding of the appellants to keep the Service Centre out of the purview of Central Excise Officers. We find force in that. The submission of SDR to order confirmation of duty on Stators simultaneously coming into existence in the Service Centre is to be rejected since there is no evidence, to that effect, produced. 13. At this juncture, the learned Senior Standing Counsel for CBIC contended that in addition to the job work which the appellant have been given for shaping, varnishing and baking of stators which they were undertaking prior to 01.05.1992, the assessee also is retrieving certain old stators from old scrap compressors which the Service Centre is receiving and the assessee has been subjecting those stators undergo a certain process by which the action can be brought within the purview of manufacturing under the Central Excise Act. Thus, to the aforesaid extent, the impugned order needs to be interfered with. 14. However, perusal of the pleadings and the records would reveal that the order of asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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