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Ashok Leyland Ltd V/S CCE & ST, LTU, Chennai

    E/87 - 94/2011 (Arising out of Order-in-Original No. LTUC/356 363/2010 (C) dated 30.11.2010 Passed by the Commissioner of Central Excise & Service Tax, LTU, Chennai) and Final Order Nos. 40321-40328/2018

    Decided On, 31 January 2018

    At, Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Chennai

    By, MEMBER

    For Petitioner: Raghavan R., Advocate And For Respondents: A. Cletus, ADC (AR)

Judgment Text

1. These eight appeals are on identical dispute and are accordingly taken up together for disposal.

2. The appellant is engaged in the manufacture of Commercial Vehicles. They clear chassis fitted with engine and all the required parts to their dealers/depots. Some of the chassis so cleared were found to be having mechanical problems which will make them unfit for further use as motor vehicles. Accordingly, these chassis which were originally cleared on payment of duty were returned back to the premises of the appellant from their own depots. The appellants following the provisions of Rule 16 of the Central Excise Rules, 2002 (in short CER 02) have taken the credit of duty paid at the time of initial clearance of the said returned chassis. Thereafter, the returned chassis were subjected to detailed examination and wherever found possible certain replacements and modifications have been carried out and were cleared thereafter. In such a situation, the appellants reversed the credit which was re-taken at the time of return of the said chassis. There is no dispute on this aspect. However, certain numbers of chassis have undergone certain extensive processes. The appellants claim that the processes undertaken on such chassis will virtually amount to manufacture and as such the revalued product will suffer duty as and when they are cleared without attracting the provisions of Rule 16 for exact reversal of re-credit taken on return of these chassis. The Revenue entertained a view

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that the processes undertaken by the appellant on such returned chassis will not amount to manufacture of any new item. Any amount of repair or re-fixing or addition/replacement will not amount to manufacture and accordingly applying the provisions of Rule 16 the appellant is liable to reverse the re-credit taken on such returned chassis. On this basis various proceedings were initiated against the appellants. They have filed their defense opposing the proposal of the Revenue. The matter was adjudicated by the original authority who upheld the views of the Revenue in respect of such chassis which the appellants claimed to have to gone through the processes of dis-assembly and re-manufacture. The original authority did not agree with the appellants that the processes undertaken on returned chassis will amount to manufacture. Accordingly, the differential duty demand was confirmed and penalties were imposed under Rule 25 of the CER 02.

3. The Ld. Counsel appearing for the appellants mainly submitted on the following lines:-

a) He submitted that large numbers of chassis were returned from the depots due to various functional/mechanical defects. These were examined by the appellants in their premises. Wherever feasible these were subjected to replacement of parts, re-fixing of mechanical defects and were cleared following the provisions of Rule 16 which mandates reversal of retaken credit. However, in respect of chassis with serious mechanical defects, the appellants undertook the processes of dismantling and re-fixed all the required parts like engines, transmission system, steering wheel, axles, gear box, spring leaves etc. as per the requirement in each case. It is clear from the annexure to the notice itself that the components/parts replaced were all new and the goods which are cleared were in many cases identified with different model numbers and different product numbers. This is sufficient to show that the processes undertaken by the appellants should be considered as manufacture in terms of Section 2(f) of the Act.

b) The impugned order itself indicates that even if the submission of the appellant regarding dismantling and re-assembling of chassis is accepted, still the processes of manufacture is not satisfied. This is factually incorrect as when full dismantling and re-assembling is undertaken the process shall amount to manufacture. Reference was made to the decision of the Tribunal in the case of Maruti Udyog Ltd. CCE, Delhi : 2002 (146) ELT 427 (Tri.).

c) With reference to factual evidences sought by the Bench regarding the processes undertaken by the appellants on such returned chassis, a detailed affidavit by the responsible person of the assessee is filed today. The affidavit explains that there were manufacturing defects on account of mis-match that led to improper disengagement of gear which had impact on transmission and forward movement of the vehicle. Further, explaining that a new vehicle model number is built on the old chassis frame which carried chassis number to identify the salvaged parts while rebuilding. The affidavit further asserted that in majority of cases the chassis had been assembled with new engine/steering system and consequently there have been model change on account off changes brought about in transmission. However, the affidavit concluded that the full details of dismantling, salvaging and re-assembling of new model chassis had been managed and accounted with ERP software system relevant during that time. Since the appellants have switched over to SAP system in April 2012 it is not immediately possible to give elaborate and specific supporting evidences as per the requirement of the Bench.

d) The Ld. Counsel also submitted that in case of re-credit availed returned goods having cleared again involves an additional requirement of payment there is no machinery to demand such payment under Rule 16. Section 11A will not be attracted automatically.

e) It is also submitted that certain numbers of chassis were in fact cleared under Notification No. 108/95 where no duty liability will arise based on end use. Similarly, clearances were made to EOU and some were also exported. Here also no duty liability will arise irrespective of the finding on the above dispute.

f) The Ld. Counsel strongly pleaded against imposition of penalties in the present appeals. It is his submission that this is of purely interpretation of the issue involved on application of Rule 16 read that Section 2(F) of the Act. There is reason for the appellant to have a bona fide belief regarding the processes amounting to manufacture and should suffer duty as a new product not under Rule 16. On this premise the penalties imposed were sought to be set aside.

4. The Ld. AR strongly opposed the appeals on the following lines:-

a) The evidences brought forward during verification as well as in the SCN clearly brought out that what was done by the appellant is certainly replacement of defective parts including engines, steering wheel, axle etc. Replacement of all these components how so ever they are critical will not make re-manufacture of chassis. The products now under dispute are motor vehicle chassis. There is no evidence that these motor vehicle chassis were remanufactured. It is only various critical components like engine, gear box, steering wheel etc., found faulty were repaired or replaced depending upon requirement. The classification of the returned products as well as re-cleared products was the same. The in between process is only repair and restoration not amounting to manufacture.

b) The claim of the appellant that there is total dis-assembly and re-manufacture is not supported by any material evidence. Further, the same is not technically also feasible. The chassis number, admittedly, remained the same. Based on the change in the engine and the transmission system apparently the engine capacity may change. So the change in model. This not by itself will amount to remanufacture.

C) The appellants followed all the procedures as per the requirement of Rule 16 till re-availment of credit taken on initial clearance. Since there is no processes amounting to manufacture, the re-credit availed should be reversed in full and this is inbuilt in the said legal provisions itself.

c) The appellant is a well established organization and there could be no interpretation difficulty claiming bona fide belief against imposition of penalties.

5. Heard both sides and perused the records.

6.1 On the first point, we note that the appellants received duty paid motor vehicle chassis due to various defects. Admittedly, the appellants after due scrutiny of the returned chassis undertook certain processes to make them fit for use. The type of processes undertaken varied. The appellants admit when they have taken simple replacement of defect parts they are liable to reverse the re-credit taken upon second clearance of the goods. This is not in dispute. Regarding various other chassis, the claim of the appellant is the processes are so elaborate involving dismantling and re-assembling which will be outside the scope of simple reversal of availed credit and make them as fresh clearances of re-manufactured items subjected to valuation and duty liability as relevant at the time of clearance. We note for this, it is necessary to have a detailed processes undertaken in such cases. We have noted the affidavit filed today by the appellants. Admittedly, the affidavit also clearly states that they have undertaken various replacements of the components. It is also admitted that the chassis frame remains the same. We are dealing with impugned goods which are motor vehicle chassis frames with fitted engine and other accessories to make a motor vehicle without any body. The central point of dispute is can there be a total dismantling and re-manufacture of such duty paid motor vehicle cleared in the form of chassis with all the requirements of engine, transmission system. On close scrutiny of documents on record, we note that there is no total dismantling and re-manufacture of the impugned goods in the premises of the appellants. There is no supporting evidence to that effect. In fact, we have all the indications to show that only replacement of various components, though critical has been undertaken. These are engine, gear box, steering system, axles etc. These are no doubt critical components of a motor vehicle. But replacement of such items will not amount to manufacture of motor vehicle. Hence, we are in agreement with the lower authority on this aspect regarding application of Rule 16 to the clearances made by the appellant. Regarding the machinery to collect excess amount, we note Rule 16 of CER 02 provisions as below:-

(1) Where any goods on which duty had been paid at the time of removal thereof are brought to any factory for being re-made, refined, re-conditioned or for any other reason, the assessee shall state the particulars of such receipt in his records and shall be entitled to take CENVAT credit of the duty paid as if such goods are received as inputs under the CENVAT Credit Rules, 2002 and utilise this credit according to the said rules.

(2) If the process to which the goods are subjected before being removed does not amount to manufacture, the manufacturer shall pay an amount equal to the CENVAT credit taken under sub-rule (1) and in any other case the manufacturer shall pay duty on goods received under sub-rule (1) at the rate applicable on the date of removal and on the value determined under sub-section (2) of section 3 or section 4 or section 4A of the Act, as the case may be w.e.f. 1.4.2003 following explanation is inserted vide notification No. 17/2003-CE (NT) dated 13.03.2003. Explanation. - The amount paid under this sub-rule shall be allowed as CENVAT credit as if it was a duty paid by the manufacturer who removes the goods.

(3) If there is any difficulty in following the provisions of sub-rule (1) and sub-rule (2), the assessee may receive the goods for being re-made, refined, re-conditioned or for any other reason and may remove the goods subsequently subject to such conditions as may be specified by the Commissioner. Provided that for the purposes of this rule, assessee shall include wire drawing unit, which has cleared he goods on payment of an amount equal to the duty at the rate applicable to drawn wire on the date of removal and on the value determined under relevant provisions of the Act and the rules there under: Provided further that the amount paid under the first proviso shall be allowed as Cenvat credit as if it was duty paid by the assessee who removes the goods.

6.2 From the above provisions, it is clear that when the assessee subjected the goods to processes not amounting to manufacture, they shall pay an amount equal to the Cenvat credit taken sub-rule (1). In other words, the re-credit taken upon return of the goods for being remade or refined, re-conditioned or for any other reason, upon completion of such processes, the re-credit taken shall have to be reversed as and when the said goods were cleared. The sub-rule (2) further provides to say that if the goods returned were subjected to processes amounting to manufacture then the duty upon such removal shall be covered by the provisions of Section 3 or Section 4 or Section 4A of the CEA, 1994. On plain reading of these provisions, we find that there is no ambiguity regarding the procedure to be followed by an assessee under Rule 16. Admittedly, the appellants did follow the procedure under Rule 16 in so far as re-credit availed upon return of defective goods. They did observe the procedure as per the Trade Notice 108/LTU dated November, 2008 issued by Commissioner, LTU. We are dealing with a part of provision of Rule 16(2). Having held that the appellants did not undertake any processes amounting to manufacture, we note the said Rule will apply in full force.

6.3 Regarding the claim of the appellants that certain numbers of returned chassis upon removal of defects, have been cleared either on physical exports out of country or to supply to EOU or supply under Notification No. 108/95, we note that these products irrespective of the dispute under Rule 16 are otherwise eligible for clearance without payment. These can be verified from the documentary support that will be produced by the appellants. Hence the differential credit/duty attributable to the said clearances shall not be liable to be paid by the appellants.

6.4 Dealing with the penalty imposed by the lower authority, we note that all the demands were issued in normal period and the penalties were issued under Rule 25 of CER 02. Having noted the facts and circumstances of the case and the processes undertaken by the appellants, there is a case for the appellants for claiming interpretation of the provisions of Rule 16. Though we have held on merit against the appellant based on the factual and legal discussion made above, we are inclined to agree with the appellants regarding the non-liability to penalty in these circumstances. According, while upholding the differential duty as above, we are setting aside the penalties. The differential credit recoverable shall be re-calculated based on the deductions for the clearances (like exports etc.) which can be made without payment of duty.

7. Appeals are disposed of in the above manner