ELECTROTHERM INDIA LTD. Vs. COMMR. OF C. EX.

JUDGEMENT

(1.) THESE stay applications have been filed by the appellants against OIO No. AHM -CEX -003 -COMMR -014 -13, dated 12 -3 -2013. Brief facts of the case are that M/s. Electrotherm (India) Limited, Kutchh, Gujarat are the manufacturer of Battery Operated two wheelers under the brand name 'YO Bikes'. Their spare parts Division -II situated at Survey No. 72, Village - Palodia, Kalol, Distt. Gandhinagar (present main appellant). The main appellant is carrying out the processes of packing, repacking, relabelling, etc., of the battery operated bikes parts at their premises in Kalol, which according to Revenue amounts to manufacture as per the amended definition of manufacture given in Section 2(f)(iii) of the Central Excise Act, 1944 and reads as follows: -

(2.) SHRI J.C. Patel (Advocate) appearing on behalf of the appellant argued that Sri. No. 100 of the Third Schedule of the Central Excise Act, 1944 is applicable only to "Parts, Components and Assemblies of automobiles". It was his case that Battery Operated two wheelers made by the main appellant at Kutchh are not automobile and are not covered by the provisions of Section 2(f)(iii) of the Central Excise Act, 1944. Secondly, he argued that the Battery Operated bike has no engine as discussed by the adjudicating authority under Para 18.5 and accordingly, it has to be considered that Battery Operated bike is not an automobile attracting the provisions of Sri. No. 100 of the Third Schedule to Central Excise Act, 1944. Shri S.K. Mall (AR) appearing on behalf of the Revenue argued that the battery operated bike manufactured by the main appellant at Kutchh is an automobile as per C.B.E. & C. Circular No. , dated 11 -7 -1990 and No. 167/38/2008 -CX, dated 16 -12 -2008. He relied upon the following case laws: -

(3.) HEARD both sides and perused the case records. The term 'Automobiles' has not been defined under the Central Excise Act, 1944 or the Central Excise Tariff Act, 1985 but the definition of 'Automobiles' is existing as Rule 2(b) of the Automobile Cess Rules made under the Industries (Development & Regulation) Act, 1951, as follows: -