Beml Vs. Commissioner of Central Excise,

Beml vs Commissioner of Central Excise,

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Decided Apr 10, 2001

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Citation: sooperkanoon.com/22052
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT
Decided On: Apr 10, 2001
Subject: Excise

Case Summary

AI-generated summary - not the official court judgment text.

Excise

Key legal issue: Excise

Parties & Advocates

Appellant / Petitioner

Beml

Advocate Shri. Naganand

Respondent

Commissioner of Central Excise,

Legal References

Reported In: (2001)(75)ECC378

Excerpt

.....with on the limited issue. accordingly appeal was taken up for regular hearing with the consent of both sides.3. the assistant collector demanded a central excise duty of rs 85,31,675/- on the parts/components falling under chapter no. 8607 manufactured by the appellant and used in the manufacture of rail coaches and supplied to indian railways during the period from 1988 to 3.5.93. the party has become unsuccessful even before the commissioner (appeals). hence this appeal.4. shri naganand appearing for the appellants submitted that the item emerged at the intermediate stage in the manufacture of rail coaches and they put up super-structure on the wheel & axels. he contended that the items as such are not excisable goods. he also pleaded that the specific plea has been taken by the party before authorities below that they are neither marketed as such nor being capable of market. inspite of this, the authorities below have not dealt with the issue with reference to the marketability. specifically he drew out attention to the plea taken by the party before the assistant collector that the railway coaches at intermediary stage of production are not marketable.therefore, the goods are not excisable and the show-cause notice cannot be sustained. heard shri thomas, dr for the revenue. on going through the facts and circumstances and in view of the submissions made by both sides we find that the authorities below have not dealt with the specific plea with reference to the issue of marketability. the supreme court time and again has said that burden lies on the revenue to establish whether the goods are marketable or capable of being marketed before levy of duty. in the facts and circumstances and in the absence of finding by the authorities below with reference to this specific plea we are of the view that this matter will have to go back. in the view we have taken we are remanding the matter to the jurisdiction of the original adjudicting authority to re-examine.....

Full Judgment

1. This appeal arises out of and is directed against the impugned order dated 2.1.97 passed by the Commissioner of Customs and Central Excise (Appeals), Bangalore.

2. The party has filed stay application for the waiver of pre-deposit of duty amounting to Rs 85,31,675/-. After hearing both sides with reference to the stay application we felt that the matter itself can be dispensed with on the limited issue. Accordingly appeal was taken up for regular hearing with the consent of both sides.

3. The Assistant Collector demanded a Central Excise Duty of Rs 85,31,675/- on the parts/components falling under Chapter No. 8607 manufactured by the appellant and used in the manufacture of rail coaches and supplied to Indian Railways during the period from 1988 to 3.5.93. The party has become unsuccessful even before the Commissioner (Appeals). Hence this appeal.

4. Shri Naganand appearing for the appellants submitted that the item emerged at the intermediate stage in the manufacture of rail coaches and they put up super-structure on the Wheel & Axels. He contended that the items as such are not excisable goods. he also pleaded that the specific plea has been taken by the party before Authorities below that they are neither marketed as such nor being capable of market. Inspite of this, the authorities below have not dealt with the issue with reference to the marketability. Specifically he drew out attention to the plea taken by the party before the Assistant Collector that the railway coaches at intermediary stage of production are not marketable.

Therefore, the goods are not excisable and the show-cause notice cannot be sustained. Heard Shri Thomas, DR for the revenue. On going through the facts and circumstances and in view of the submissions made by both sides we find that the Authorities below have not dealt with the specific plea with reference to the issue of marketability. The Supreme Court time and again has said that burden lies on the Revenue to establish whether the goods are marketable or capable of being marketed before levy of duty. In the facts and circumstances and in the absence of finding by the Authorities below with reference to this specific plea we are of the view that this matter will have to go back. In the view we have taken we are remanding the matter to the jurisdiction of the original adjudicting authority to re-examine the matter and to pass an appropriate order in accordance with law on providign an opportunity to the party. The party may make use of this oppurtunity and substantiate his claim during the re-adjudication proceedings. Thus this appeal is allowed by way of remand. Stay application is also dispensed with accordingly.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT · 2001 Same Parties Beml vs Commissioner of Central Excise, Same Subject Excise