LexM/S. IBEX GALLAGHER PVT. LTD. AND ANR. versus COMMISSIONER OF CENTRAL EXCISE, BANGALORE
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A MIS. IBEX GALLAGHER PVT. LTD. AND ANR. v. COMMISSIONER OF CENTRAL EXCISE, BANGALORE AUGUST 17, 2007 B [DR. ARIJIT PASAYAT AND D.K. JAIN, JJ.] Central Excise Act, 1944; Ss. 2(b) and 1 !AC; Circular No. 581112002- CX dated January I 5, 2002 issued thereunder by the Central Board of Excise C and Customs/Central Excise Tariff Act, 1985; sub-heading 8543.90: Excisability of plants and machinery-Assessee assembling 'Solar Electric Power Fencing System'-lssuance of show-cause Notice by Revenue demanding certain amount of excise duty-Demand of duty confirmed by the Authorities-Assessee filing appeal before Tribunal-Tribunal held that the D item in question is goods satisfj;ing tariff description under sub-heading 8543.90 and thus liable for excise duty-On appeal, Held: On the issue of excisability of goods assembled at site, a Circular clarifying on the question of excisability of such goods in terms of various decisions of the Supreme Court on the subject of excisability has already been issued by the Central Board of Excise and Customs-Since factual aspects not considered by the E Tribunal, it would be proper to remit the matter to it for consideration afresh in terms of the Ci:·cular and in the light of judgments of Supreme Court in CCE, Indore v. Vidhi Brothers and CCE, Indore v. Cethar Vessels-Directions issued The Commissioner, Revenue, while examining the excisability of the F Solar Electric Power Fencing System in terms of Section 2(b) of the Act held that assembling of the said item at the site by the assessee will bring into existence a new product distinct from all its parts/product used in it, thus liable for excise duty. Accordingly, a show-cause Notice was issued to the assessee. The assessee contended that the goods in question are not G classifiable under the tariff sub-heading 8543.90 of the Customs Excise Tariff Act as electrical machipes and apparatus, and thus, not liable for duty. The authorities invoked la~er period in terms of Section 1 lA of the Central Excise Act, 1944 and confirmed the duty demanded and also imposed like sum as penalty under Section 1 lAC of the Act. A sum of rupees five lakhs was also H 70 ' t - IBEX GALLAGHER PVT. LTD. v. COMMNR. OF CENTRAL EXCISE, BANGALORE 7) levied as penalty on the Managing Director of the Company. Aggrieved, the A assessee filed an appeal, which was allowed by the Tribunal holding that goods in question are liable to Excise duty and remanding the matter to Revenue for recounting the duty in terms of the directions, and the penalty against the Managing Director reduced to Rs.50,000/-. Hence the present appeals. Appellant-assessee contended that the view taken by the CEST AT is B untenable as the adjudicating authority was not justified in holding that fabrication of the plants in question out of duty paid bought out items amounts to manufacture of a new marketable commodity and therefore dutiable. Allowing the appeals, the Court HELD: 1.1. The issue relating to excisability of plants and machinery assembled at site has been determined by this Court in several cases. As a matter of fact taking into account these decisions Circular No.58/1/2002- c CX dated 15th January, 2002 has been issued by the Government of India, Ministry of Finance (Department of Revenue), Central Board of Excise & D Customs, New Delhi. The Circular indicates that it was intended to clarify the question of excisability of plant and machinery assembled at site. Quality Steel Tubes Pvt. Ltd. v. CCE, (1995) 75 E.L.T. 17 (SC); Mittal Engineering Works Pvt. Ltd. v. CCE, Meerut, (1996) 88 E.L.T. 622 (SC); Sirpur Paper Mills Ltd.. v. CCE, Hyderabad, (1998) 97 E.L.T. 3 (SC); Duncan E Industries Ltd. v. CCE, Mumbai, (2000) 88 ECR 19 (SC); Triveni Engineering & Industries Ltd. v. CCE, (2000) 120 E.L.T. 273 (SC); CCE, Jaipur v. Man Structurals Ltd., (2001) 130 E.L.T. 401 (S.C.) and Silica Metallurgical Ltd. v. CCE, Cochin, (1999) 106 E.L.T. 439 (Tribunal), referred to. !Para 7 and 8) (74-G-H; 75-AI F 1.2. As the basic factual aspects were not considered by the CEST AT, it would be proper to remit the matter to it for a fresh consideration in the light of the judgment in the case of CCE, Indore v. Virdi Brothers and CCE, Indore v. Cethar Vessels' and Circular No.58/1/2002 CX dated January 15, 2002issued by the Government of India, Ministry of Finance, Department of G Revenue, Central Board of Excise & Customs. (Para 91 (77-G) Comm
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