COMMISSIONER OF CENTRAL EXCISE Vs. MIL INDIA LTD

JUDGEMENT

(1.) In the present appeal filed under Section 35G of Central Excise, Act, 1944 (hereinafter referred to as "the Act") the Commissioner of Central Excise, Noida, has raised the following four substantial questions of law which are said to arise out of the order of the Custom Excise and Service Tax Appellate Tribunal, dated 3.10.2003:

(2.) Briefly stated, the facts giving rise to the present appeal are as follows: M/s Mazz India Limited, now known as MIL India Limited, (hereinafter referred to as "the respondent") is engaged in manufacture of plant and equipment for the soap detergent etc. falling under sub-heading 8479.90 of the Central Excise Tariff Act, 1985 (hereinafter referred to as "the Tariff Act"). It is registered under the Act. The Assistant Commissioner, Custom and Central Excise, Division I, Noida, issued a show cause notice on 23.5.1997 calling upon the respondent to show cause as to why the value of bought out items used in the assembly of goods at site and claimed as trading goods during the period April 1996 to March 1997 be not recovered as it had evaded payment of excise duty amounting to Rs. 94,03,500 by non-inclusion of the value. The respondent submitted it reply on 19.8.1997 and denied to have evaded any excise duty. It further submitted that bought out items were trading goods and were attached to earth and, thus, became immovable and cannot be held to be excisable goods. It also raised a plea of limitation that the demand is barred by time. The Assistant Commissioner, Central Excise, Division I, Noida, vide order dated 14.5.1999 confirmed the demand of Rs. 94,03,500. Feeling aggrieved, the respondent preferred an appeal before the Commissioner (Appeals), Custom and Central Excise, Ghaziabad. The Commissioner, vide order dated 22.3.2000, had held that the process of assembly and erection of plant at site manufactured by the appellant with bought out items supplied directly at site amounts to manufacture of a distinct new commercial article and chargeable to duty under the Act and the Rules. He did not disturb the findings of the Assistant Commissioner in this regard. However, he remanded the matter to the Assistant Commissioner to redetermine the quantum of duty actually due after giving an opportunity to the appellant. The relevant portion of the order of the Commissioner (Appeals) is reproduced below:

(3.) The aforesaid order had become final between the parties as no further appeal as provided in Section 35E(3) of the Act has been "preferred by the respondent.