MAHINDRA AND MAHINDRA LTD. Vs. CCE, AURANGABAD

JUDGEMENT

(1.) THESE two appeals were remanded by the Hon'ble Supreme Court in Civil Appeal No. 3725 -3726 (NM) of 1999 and 7605 of 1999 to the Tribunal for fresh decision. In case of appeal of New Bharat Builders (Bombay) Pvt. Ltd. their name was deleted from the array of respondents vide court's order dated 10th July, 2000. The issue involved in these appeals is common, therefore, these are being taken up together for decision. Appeal No. E/4673/89 -B:

(2.) THE facts in brief are that on 12.3.1988, Central Excise officers visited the premises of M/s. Mahindra and Mahindra Ltd. Satpur, Nasik and noticed that steel structural viz. purlins, beams, trusses, inserts, columns, cable, cladings, inserts, etc. were being manufactured and utilised for erection of their new sheds. During investigation, it was found that the appellants have got manufactured the above said structural steel articles at their own factory site for erection of new sheds by M/s New Bharat Builders (Bombay) Pvt. Ltd. on job charge basis as per designs and specifications provided by the appellants. The raw material such as structural steel, nuts, bolts, etc. for manufacture of steel structural articles were purchased by the appellants and M/s. New Bharat Builders (Bombay) Pvt. Ltd carried out manufacturing operation with the aid of different machines through their own employees arid job workers. Show cause notice was issued to the appellants that the structural steel articles fall under sub -heading 7308.90 of Schedule to the Central Excise Tariff Act and the appellants were required to pay central excise duty of Rs. 11,09,469.17. They have contravened the provisions of Rule 9(1) read with Rule 173G(1), Rule 52A, 173B, 173C and 173F of the Central Excise Rules by clearing the excisable goods without payment of duty and penalty was proposed on them under Rule 9(2), 52A, and 173Q of the Central Excise Rules. Show cause notice was also issued to M/s. New Bharat Builders (Bombay) Pvt. Ltd. for penalty under Rule 209A of the Central Excise Rules, 1944 as they were concerned in transporting, removing, depositing, keeping, manufacturing and dealing with the excisable goods which they new and had reason to believe were liable to confiscation having been removed without payment of duty. The case was adjudicated by the Commissioner, Central Excise, Aurangabad, who confirmed the demand of duty of Rs. 11,09,469.17 and imposed a penalty of Rs. 2 Lakhs on the appellants and also imposed a penalty of Rs. 25,000/ - on M/s. New Bharat Builders (Bombay) Pvt. Ltd. He held that the extended period of time of 5 years is invokable for demanding the duty under Section 11A(1) of the Central Excise Act. Appeals filed by present appellants and M/s. New Bombay Builders against the order of adjudicating authority were allowed by Tribunal under Order No. 285 -286/99 -B1 dated 15.3.99. The Hon'ble Supreme Court remanded appeal of M/s. Mahindra and Mahindra Ltd. to Tribunal for fresh decision. Appeal No. E/2176/92 -Excise!

(3.) THE facts in brief are that on 2.11.89, Central Excise officers visited the factory premises of M/s. JCT Ltd., Phagwara, and found that steel structures of iron and steel were fabricated in the factory premises. On inquiry, it was found that the execution of the work of steel structures was given to Shri Amar Sing, Partner of M/s. Amar Singh and Company. Investigation was carried out by the officers and they found that M/s. Amar Singh and Company had manufactured steel structures of iron and steel falling under sub -heading No. 7308.90 of the Schedule to the Central Excise Tariff Act and cleared the same without payment of central excise duty. They have contravened the provisions of Section 6 of the Central Excise Act, Rule 9(1), 52A, 53, 173B, 173C, 173G, 173F and 226 of the Central Excise Rules, 1944 as they manufactured the excisable goods without having applied for central excise licence and cleared the same without observing central excise formalities. Accordingly, show cause notice was issued to them demanding duty of Rs. 3290683.40 under Rule 9(2) of the Central Excise Rules, 1944 read with Section 11A of the Central Excise Act by invoking the extended period of 5 years on the ground that they manufactured excisable goods without having applied for Central Excise Licence and without observing the formalities required under Central Excise Law. Penalty was also proposed on them under Rule 9(2), 173Q and 226 of the Central Excise Rules, 1944. Show cause notice was also issued to M/s. JCT, Phagwara for imposition of penalty on them under Rule 209A of the Central Excise Rules, 1944, on the ground that they acquired the possession and were concerned in purchasing and keeping the excisable goods on which no central excise duty had been paid and they knew that same were liable to confiscation. The case was adjudicated by the Commissioner under the impugned order confirming the demand of Rs. 32,90,683.40 and imposing a penalty of Rs. 1,50,000/ - on M/s. Amar Singh and Company under Rule 173Q of Central Excise Rules, 1944. The charges against M/s. JCT Ltd. were dropped. Appeal filed by M/s. Amar Singh and Company against order of adjudicating authority was allowed by Tribunal vide Order No. 121 -137/99 -B1 dated 12.2.99. On departmental appeal against Tribunal's Order, the case has been remanded to the Tribunal for a fresh decision. Arguments of Appellants: