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TMI Blog2024 (8) TMI 994X X X X Extracts X X X X X X X X Extracts X X X X ..... inished goods. The conversion/assembling of the imported dump truck in SKD condition into fully finished dump truck, could amount to manufacture. Further, there is also an observation by the commissioner insofar as the price difference is concerned, but however, the same alone may not be a reason for disregarding the very activity of manufacture since any such difference may invite a different action if the same amounts to infraction of any provision/s of the statute. But, in any case, the factum of assembly is required to be established, which is the primary condition. A cumulative reading of OIO and OIA indicates that the Revenue department had seriously disputed the claims of the Appellant including the import in SKD condition since, app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dated 13.1.2012 are that the assessee was engaged in the manufacture of dump trucks classifiable under Central Excise Tariff Heading 8704 1010 and that they were also availing CENVAT Credit on inputs, capital goods and input services. 2.1 During the period under dispute, it appears that the department undertook verification of the records of the assessee-taxpayer and they appear to have noticed that the assessee had imported one Dump Truck Model No.HD785-7, claimed to be in the SKD condition on which they had availed CENVAT credit; the dump truck was claimed to be subsequently assembled and cleared on payment of duty. It is thus the case of the department that in terms of Rule 3(5) of CENVAT Credit Rules, 2004 when inputs or capital goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , ld. Advocate, for the Assessee-Appellant and Sri Harendra Singh Pal, ld. Assistant Commissioner, for the Revenue. 3.2 I have carefully perused both the orders of lower authorities and also considered the documents / judicial pronouncements relied upon during the course of arguments. 3.3 Upon consideration, I find that the only issue that crops up for my consideration is, whether the Department was justified in not accepting the claim of Manufacturing activity of the Appellant/importer insofar as the dump truck in question is concerned? 4. It is the case of the First Appellate authority, as could be seen from the impugned order, that the import price of the consignment with BCD exclusive of CVD, cess and SAD was ₹2,44,00,00,000/- whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st Appellate Authority has no precedential value. She would further submit that at the time of import, the dump truck was incomplete and unassembled or disassembled, in SKD condition, the same was assembled/converted into a fully finished dump truck which was cleared upon payment of duty. Hence, Rule 2(a) of the General Rules of Interpretation [GRI for short] r/w Note 6 of Section XVII of the CETA, 1985 [Note 6 for short] when applied, the activity of the appellant would fall within the scope of manufacture and therefore, the findings of the lower authorities and the consequent demand cannot be sustained. 5. In the light of the rival contentions, it is of utmost relevance to verify the case of the importer in the context of provisions of la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerned, but however, I am of the view that the same alone may not be a reason for disregarding the very activity of manufacture since any such difference may invite a different action if the same amounts to infraction of any provision/s of the statute. But, in any case, the factum of assembly is required to be established, which is the primary condition. 7. In the Show Cause Notice dated 13.01.2012 the relevant observation leading to the issuance of Show Cause Notice, as at para 2, reads as under: 2. On verification of records, it was noticed that the assessee had imported one dump truck Model No. HD785-7 in SKD condition vide Bill of Entry No. 402684 dated 21.2.2007 and availed CENVAT credit to an extent of Rs.51,25,054/- (CVD Rs.39,04,451 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed at page 42 of the appeal memo which only reflect 1 UNT of Komatsu Dump Truck Model HD785-7 (KIPL PCD 06-011) and from this, it is not possible to ascertain if the article was in SKD condition as claimed or CKD condition. Moreover, if it is be accepted as in SKD condition and that the importer did the assembling job, then it was for him to at least place on record, when specifically asked by the authority in the SCN, the activity that it performed to claim as a complete article. No effort apparently was done, nor do I find any attempt being made, at least before me to explain the process undertook by the importer after importing the article claiming to be in SKD condition. 9. A cumulative reading of OIO and OIA indicates that the Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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