ABI TUNAMATICS Vs. CESTAT

JUDGEMENT

(1.) THE appellant, M/s. ABI Turnametics, a 100% Export Oriented Unit, is the appellant herein. They are engaged in the manufacture and export of Turbine Wheel Assembly and Bearing Housing, parts of Turbo Charger, falling under Chapter 84 of the Central Excise Tariff Act, 1985. They are also permitted to sell a portion of the finished goods in the Domestic Tariff Area in terms of the Foreign Trade Policy 2004 -09. During the scrutiny of the records of the assessee, for the period from August, 2006 to March, 2007, it was noticed that they had cleared Turbine Wheel Assembly to DTA on payment of excise duty at concessional rate of duty vide Notification dated 31 -3 -2003 as amended. On the ground that the assessee's manufactured Turbine Wheel Assembly out of both indigenous and imported raw materials and cleared the same vide the concessional rates, a show cause notice was issued and the same was confirmed by the original authority, directing the assessee to pay a duty of Rs. 1,98,16,067/ -, and interest at the appropriate rates on the amount demanded and also a penalty of Rs. 1,98,16,067/ -.

(2.) THIS order, which was passed by the original authority, viz., the Commissioner of Central Excise, was challenged by the assessee/appellant before the first respondent CESTAT (Customs, Excise & Service Tax Appellate Tribunal), and the CESTAT, passed the impugned order directing the appellant to deposit 50% of the amount as ordered by the Commissioner. Aggrieved, the appeal has been referred on the following substantial questions of law: -

(3.) WHETHER the first respondent is correct in law while holding that the products to be similar they should be commercially interchangeable as per their subjective opinion, in preference to the provisions and definitions contained in the Foreign Trade Policy -