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Commissioner of Central Excise, Nagpur & Another v/s M/s. ACC Machinery Co. Limited & Another

    Appeal No.E/1712/2004-Mum. and Appeal No. 1725/2004-Mum. Arising out of Order-in-Appeal No.BPS(47)09/2004 dated 21.1.2004 passed by the Commissioner of Central Excise & Customs (Appeals) Aurangabad)

    Decided On, 14 March 2012

    At, Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Mumbai

    By, THE HONOURABLE MR. S.S. KANG
    By, VICE PRESIDENT & THE HONOURABLE MR. SAHAB SINGH
    By, MEMBER (TECHNICAL)

    For the Appellants : Shri A.K. Prabhakar, Superintendent (A.R.). For the Respondents : None.



Judgment Text

S.S. Kang

When the case was called none appeared on behalf of M/s. ACC Machinery Co. Ltd. and vide letter dt.24/08/2011 M/s. ACC Machinery Co. Ltd. made a request to decide the appeal on merits.

2. Revenue as well as assessee i.e M/s. ACC Machinery Co. Ltd. (assessee) filed appeals against the same impugned order therefore are being taken up together. The assessee’s are engaged in the manufacture of various Machineries and Bulkers falling under Chapter 84 & 87 of the Central Excise Tariff Act, 1985. The assessee is receiving duty paid bare chassis for the fabrication of bulkers. For fabrication of cabins duty paid bare chassis are sent to the job worker M/s. Commercial Engineers & Body Builders Co. Pvt. Ltd. and assessee are paying cabin making charges @ Rs.45,000/- per cabin. M/s. Commercial Engineers & Body Builders Co. Pvt. Ltd. are clearing the cabins in terms of the exemption Notification No. 5/98-CE dated 2.6.1998. Thereafter the assessee is fabricating bulkers and paying appropriate duty on the assessable value of the bulkers. Show cause notice was issued to add Rs.45,000/- in the assessable value of each bulker, which were paid for cabins. Revenue also wants to add 5% of the assessable value of the goods which is being charged by the assessee from M/s. ACC Ltd. as service charges in respect of procurement and co-ordination of services. The adjudicating authority confirmed the demand and imposed the penalties. On appeal filed by the assessee, the Commissioner (Appeals) set aside the demand in respect of Rs.45,000/- which are cabin making charges.

3. Revenue filed appeal on the ground that as the assessee is receiving of Rs.45,000/- for cabin building and further paying to M/s. Commercial Engineers & Body Builders Co. Ltd. and thereafter clearing the complete bulkers and therefore these charges are to be added to the assessable value of the bulkers. The assessee filed an appeal challenging addition of 5% of the assessable value as service charges.

4. We have gone through the appeal papers and heard the learned Superintendent (A.R.). We find that the Commissioner (Appeals) in para -9 held that the cabins are built up by M/s. Commercial Engineers & Body Builders Co. Ltd. and clearing the same under benefit of Notification No. 5/98-CE dt. 2.6.1998 without payment of duty. As the cabins are fabricating by the job worker and job worker is liable to pay duty in respect of the cabin and job worker being independent manufacturer is availing the benefit of notification. Therefore, the duty by adding Rs.45,000/- to the assessable value of bulkers cannot be confirmed against the present assessee, who is manufacturing bulkers. In case the job worker is wrongly availing the benefit of Notification No. 5/98-CE dt. 2.6.98 the job worker is liable to pay duty and not the present assessee. In view of this, we find no merit in the appeal filed by the Revenue same is dismissed.

5. In the appeal filed by the assessee challenge to the inclusion of 5% of the charges in the assessable value of bulkers as the 5% have been charges by the assessee on account of service charges which

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are in respect of co-ordination and procurement of material which are in respect of the bulkers manufactured by them. Therefore, the same are to be added to the assessable value of the bulkers. Hence, we find no merit in the contention of the assessee also. The appeal filed by the assesses also dismissed. Consequently, both the appeals are dismissed.
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