Neo Sack Limited Vs. Cc

Neo Sack Limited vs Cc

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi Decided Apr 03, 2007

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Citation: sooperkanoon.com/45242
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi
Judge: S Kang, Vice, N T C.N.B.
Decided On: Apr 03, 2007
Subject: Service Tax

Case Summary

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

Service Tax

Key legal issue: Service Tax

Parties & Advocates

Appellant / Petitioner

Neo Sack Limited

Respondent

Legal References

Reported In: (2007)(119)ECC430

Excerpt

.....and therefore, they are liable for confiscation and benefit of epcg licence was also disallowed and penalties were imposed.3. the contention of the appellant is that the goods they have purchased are from m/s. ever star far east ltd who is the manufacturer of circular weaving machines. as the wide width weaving machines are not generally manufactured, therefore, the appellants got the machines modified to the wide width circular weaving machines and after modification, the same were tested for two months at manufacturer's place. regarding this, the appellants produced chartered engineers certificate whereby it has been certified that new machines were modified and the machines in question were new and the same were imported into india.4. the revenue contended that on visual opinion, the machines are old and used and thereafter the same were examined by machine expert and as per his opinion, the machines were old and used.5. the contention of appellants is that at the time of release, the appellants got the machines examined from chartered engineer and as per his certificate, the goods in question were not old and used machines.the contention of appellant is that machines in question were modified and tested at the manufacturers place, the finding of the lower authorities based on visual examination by technical appraiser, has no value. the appellants relied upon the decision in the case of vardhman spinning & general mills ltd v. cc amritsar to submit that whereby opinion of visual examination of machines was rejected by the tribunal. it is submitted that the appeal filed by revenue was dismissed by hon'ble supreme court in the case of commissioner v. vardhman spinning & gene. mills ltd reported in 2005 (183) elt a/160. the contention is that in view of chartered engineer certificate produced by the appellants examining each part of the machine and opinion that the machines in question are not old and used one, therefore, the impugned order is not.....

Full Judgment

1. Heard both sides. The appellant filed this appeal against the impugned order passed by the Commissioner (Appeals). The appellants made import of three Wide Width Circular Weaving Machines alongwith certain testing meters under the EPCG license. As per the policy, under the EPCG license, only new machines can be imported and old and used machines are prohibited.

2. The case of the revenue is that appellant imported old and used machines and therefore, they are liable for confiscation and benefit of EPCG licence was also disallowed and penalties were imposed.

3. The contention of the appellant is that the goods they have purchased are from M/s. Ever Star Far East Ltd who is the manufacturer of circular weaving machines. As the wide width weaving machines are not generally manufactured, therefore, the appellants got the machines modified to the wide width circular weaving machines and after modification, the same were tested for two months at manufacturer's place. Regarding this, the appellants produced Chartered Engineers certificate whereby it has been certified that new machines were modified and the machines in question were new and the same were imported into India.

4. The revenue contended that on visual opinion, the machines are old and used and thereafter the same were examined by machine expert and as per his opinion, the machines were old and used.

5. The contention of appellants is that at the time of release, the appellants got the machines examined from Chartered Engineer and as per his certificate, the goods in question were not old and used machines.

The contention of appellant is that machines in question were modified and tested at the manufacturers place, the finding of the lower authorities based on visual examination by technical appraiser, has no value. The appellants relied upon the decision in the case of Vardhman Spinning & General Mills Ltd v. CC Amritsar to submit that whereby opinion of visual examination of machines was rejected by the Tribunal. It is submitted that the appeal filed by revenue was dismissed by Hon'ble Supreme Court in the case of Commissioner v. Vardhman Spinning & Gene. Mills Ltd reported in 2005 (183) ELT A/160. The contention is that in view of Chartered Engineer certificate produced by the appellants examining each part of the machine and opinion that the machines in question are not old and used one, therefore, the impugned order is not sustainable. In respect of spare parts, which were confiscated on the ground that the same were not mentioned in the invoice, the contention is that these are essential parts of the machines and they were supplied with the machines by the manufacturer and included in the price of the machines, therefore, these are not liable for confiscation. It is also contended that the appellants are actual user of the machines as the same are used in the manufacture of goods for export.

6 Revenue is relying upon the technical appraiser report to submit that the machines are old and used ones.

7. In this case, the issue is whether the machines in question are old and used as per the Revenue. We find that the appellants produced chartered Engineer certificate to show that the machines in question are not old and used but are new machines. We find that the chartered engineer certificate shows the machines are imported into India in the month of July, 1999 whereas as per the Chartered Engineer certificate, the manufacturing year which is embossed on the base plate is 1998. We find that the Tribunal in the case of Vardhman Spinning & General Mills Ltd rejected the case of the revenue which was based on visual examination of machines and accepted the contention of the importer as the year of manufacture was marked on the parts of the machines. In the present case also, the year of manufacture was embossed on the machines and other parts of the machines which showed that the machines are manufactured in the year 1998. The manufacturer also certified that these are new machines that the British manufacturer also certified that the machines are new and only used to the extent of testing purposes. There is no evidence on record to show that the goods in question are old and used. The Revenue has not made any enquiry from the manufacturer. In these circumstances, in view of the earlier decision of the Tribunal, we find merit in the contention of the appellants that the goods are not old and used machines. The impugned order is set aside. The appeal is allowed. The appellants are entitled to get consequential relief, if any, in accordance with law.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Delh... Same Parties Neo Sack Limited vs Cc Same Subject Service Tax Same Judge S Kang, Vice, N T C.N.B.