ABILITIES (INDIA) PVT. LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition filed by the petitioner under Article 226 and 227 of the Constitution of India impugns the Order No. 907/1983-B, 1984 (16) E.L.T. 619 (Tri.)] passed by the Customs, Excise & Gold (Control) Appellate Tribunal (hereinafter referred to as 'the Tribunal')- By the impugned order the Tribunal has dismissed the appeal of the petitioners herein, wherein the petitioners had sought quashing of the orders of the Collector (Appeals) and the Assistant Collector. The Assistant Collector had passed the orders dated 31st January, 1981 raising a demand of duty on certain goods manufactured and secured by the petitioners. This demand was upheld by the Collector (Appeals) and is affirmed by the Tribunal as well. According to the petitioner, no such excise duty was payable on the goods manufactured by the petitioners namely 'pistons', if the same were appropriately classified. Before we enter into the arena of controversy, the facts as pleaded in the writ petition may be recapitulated :

(2.) According to the petitioner, as per the aforesaid Rule it is the Original Equipment Manufacturer (hereinafter referred to as 'the OEM') to whom the concession becomes accruable when the procedure under Chapter-X of the Rules is to be followed by the respective OEMs and not the petitioners. By such exemption the OEMs are in a position to buy the parts to be used in the original equipment at a lower price i.e. without excise duty. The procedure further mandates that for availing of the exemption from payment of total excise duty, the OEM, under Chapter-X have to obtain a licence in Form L-6, submit surety or security bond as required, for the satisfaction of the Assistant Collector, Central Excise of their Range, apply for the CT-2 form to the proper officer of the Central Excise of their Division and after obtaining the same, the OEM have to send the said CT-2 forms to the manufacturer from whom they desire such parts to be supplied without payment of any excise duty. Thereafter the manufacturer of such motor vehicle parts/supplier on receiving of such CT-2 form have to submit the same to the Superintendent of Central Excise of their area. The suppliers then have to get the prices of such goods meant for the OEMs passed, as contract prices with respective OEMs under the Act. The suppliers then have to prepare Form AR-3A and GP-2 and get the GP-2s pre-authenticated from the officer of Central Excise of their area. The suppliers thereafter within 24 hours of the dispatch of the goods to the respective OEMs, through a copy of AR-3A have to inform the proper officer of the Central Excise that the goods have been dispatched to the respective OEM. The suppliers then have to submit monthly statement of all clearances (i.e. removal of OEM and that for home consumption/replacement market shown separately) in form RT-12 to the Superintendent of Central Excise for final assessment. The said RT-12 is then assessed by the Superintendent, Central Excise, a copy whereof is returned to the supplier duty assessed.

(3.) It is the case of the petitioner that pursuant to coming in force the aforesaid Notification No. 101/71-C.E. the goods of the petitioner as used by the OEMs were being cleared from time to time. The petitioner used to submit their classification list in Form No. 1 (i.e. Classification list of the excisable goods produced, manufactured or warehoused and other goods produced or manufactured and intended to be removed by the assessee) from time to time for approval by the Assistant Collector, Central Excise Division II, Ghaziabad and the same were approved without any hindrance. In support of this plea, the petitioner has annexed the copies of the approval of the Assistant Collector on 13th October, 1977 as Annexure P-3, as per which the OEM availed the benefit and not the petitioner. Whichsoever OEM followed the procedure of Chapter-X and approached the petitioner, thereafter the petitioner provided the goods to them.