Judgment:
1. M/s. FCC Rico Ltd. have filed this appeal along with an application for dispensing with pre-deposit of duty and penalty.
2. Arguing the case for waiver of pre-deposit of duty and penalty Shri B.L. Narshimhan, ld. Counsel submits that the applicants are engaged in the manufacture of Auto parts like clutch assembly, fly wheel components, disk components etc. The appellants removed 13 sets of dies in their factory. These 13 dies were removed to the premises of M/s.
Rico Auto Industries Ltd. M/s. Rico Auto Industries Ltd. used these dies for manufacture of various components and cleared the components on payment of appropriate Excise Duty. The Department alleged that since the appellants were not receiving any raw material from the principal manufacturer, therefore, M/s. FCC Rico Ltd. were not job worker of M/s. Rico Auto Industries Ltd. Therefore, they were asked to explain as to why duty should not be demanded from them and why penalty should not be imposed on them. Ld. Counsel submits that this very same issue had come up before the Tribunal in the case of Monica Electronics v. CCE, New Delhi reported in 2000 (123) E.L.T. 1047 in which this Tribunal observed that the rule making authority did not have the intention to give the expression 'job worker' used in Sub-rule (8) meaning given to it in the exemption notifications like 214/86-C.E.; that interpretation of job worker in Sub-rule (8) of Rule 57-S as having the same meaning it has in the exemption Notifications will distort the said provisions and make it unworkable. Ld. Counsel submits that in this view of the matter, the applicant was a job worker and had made payment of duty in accordance with law and no further duty was required to be paid by the applicant. Ld. Counsel also submitted that this decision of the Tribunal was further followed by the Tribunal in the case of Anusika Autolite Ltd. v. CCE, Jaipur contained in Final Order No. A/195/02, dt. 29-1-2002, after distinguishing the judgment of the Hon'ble Supreme Court in the case of Prestige Engineering (India) Ltd. v. CCE reported in 1994 (73) E.L.T. 497. Ld. Counsel submits that in view of the above decision of the Tribunal, pre-deposit of duty and penalty may be waived.
3. Shri Atul Saxena, ld. DR opposes the request and submits that the authorities below have relied on the judgment of the Hon'ble Delhi High Court, on the judgment of the Hon'ble Allahabad High Court and on the judgment of the Hon'ble Supreme Court. He submits that in view of the fact that no other raw material was supplied to the applicant, therefore, the applicant cannot be treated as job worker. He, therefore, prayed that the applicant may be directed to deposit the entire amount of duty and penalty.
4. We have heard the rival submissions. On careful consideration of the submissions made, we note that this Tribunal in the case of Monica Electronics under identical facts had held that the applicant was a job worker. To be precise the Tribunal in Paras 4 and 5 had observed : "4. We have considered the submissions and perused the records. On a perusal of the scheme of Rule 57-S and the Sub-rules (8), (9) and (10) in particular, it appears that the said three sub-rules deal with removal of moulds and dies by a manufacturer to a job worker for the purpose of production of goods on his behalf and according to the specifications given by the manufacturer. Sub-rule (8) opens with a non obstante clause provision in relation to Sub-rule (1) thereof. Rules 57-S itself deals with the manner of utilisation of capital goods and the credit allowed in respect of duty paid thereon. Sub-rule (9) puts a time-limit of three for bringing back the said moulds and dies and the goods manufactured using the said moulds/dies unless the period is extended by the Commissioner.
Sub-rule (10) provides that if the moulds/dies remove under Sub-rule (8) are not received back within the time allowed, duty shall be paid equivalent to the credit taken on the said moulds/dies. On a close reading of the said three sub-rules, it does not appear that the rule making authority had any intention to give the expression 'job worker' used in Sub-rule (8), the meaning given to it in the exemption Notifications like Notification No. 214/86. In the said Notifications the 'job worker' is supplied with raw material by the manufacturer and the job worker clears the manufactured goods from his factory after utilising the raw materials supplied by the manufacturer. The intention is to exempt the 'job worker' of duty liability as a manufacturer. In the facts of the present case, the moulds are capital goods. They are not materials which get consumed in the process of manufacture by the job worker. The scheme of Rule 57-S and Sub-rules (8) to (10) thereof does not therefore appear to be compatible with the definition of 'job worker' in the said notifications. We, therefore, find that there is force in the contention of the ld. Counsel that any interpretation of 'job-worker' in Sub-rules (8) to (10) of Rule 57-S as having the same meaning it has in the Exemption Notifications will distort the said provisions and make it unworkable. We also find that the decisions relied on by the Commissioner do not deal with the question of applicability of definition of 'job worker' in other Notifications to provisions of Rule 57-S(8).
5. In the above view of the matter, we are unable to agree with the reasoning given by the Commissioner in the impugned order for holding that M/s. Showpla India Ltd. is not a 'job worker' for purpose of Rule 57-S(8) in the facts of the case." 5. We also note that this Tribunal further following this decision in the case of M/s. Anusika Autolite Ltd. cited (supra). Having regard to the above facts, we dispense with pre-deposit of duty and penalty.