Bharat Industrial Works (Bhilai) Vs. Cce - Court Judgment

Excerpt:
2. the applicant filed these applications for waiver of pre-deposit of duty and penalties. the demand is confirmed in respect of the parts of wind operated electricity generators treating the same as excisable goods.3. the contention of the applicant is that earlier the demand in respect of the same goods were raised in the case of m/s bhilai engineering corporation. the adjudicating authority dropped the demand proceedings on the ground that the parts of wind operated electricity generators are exempted from payment of duty under notification no.6/2000-ce. the revenue reviewed the order and commissioner (appeals) also dismissed the appeal filed by the revenue. the contention is that in the present proceedings, the applicants were manufacturing parts of wing operated electricity generators and supplied the same to bhilai engineering corporation and the commissioner of central excise in the impugned order held that they are not entitled for the benefit of notification no. 214/86 on the ground that the goods which were manufactured on job work basis are not entitled for the benefit of this notification, as the final product manufactured out of the job work goods is exempted from payment of duty. the contention of the applicant is that as in the case of bhilai engineering corporation, the commissioner (appeals) allowed the benefit of notification no. 6/2000, therefore, the applicants are also entitled for the benefit of notification no. 3/2001 and 6/2002-ce which exempt from payment of duty in respect of parts of wind operated electricity generator. the contention is also that these towers etc. which are supporting structures for wind operated electricity generator are parts of wind operated generator as held in the case of cce v. techno fab manufacturing ltd. , therefore, the 4. the contention of the revenue is that the earlier orders passed by the commissioner (appeals) were not before the adjudicating authority and the adjudicating authority had not considered the claim in respect of notification which exempts parts of wind operated electricity generator, therefore, the demand was rightly made.5. in this case, in the proceedings initiated against bhilai engineering corporation in respect of same parts where the demand was dropped by the adjudicating authority and the order was upheld by the commissioner (appeals) on the ground that these parts are exempt from payment of duty under notification no. 6/2000. we find in the present case the same parts are manufactured by the applicant and the issue in respect of grant of benefit of notification during the relevant period i.e. 3/2001, 6/2002 which exempt parts of wind operated electricity generator and this clam is not considered by the lower authority.therefore, the matter requires re-consideration by the adjudicating authority afresh. the impugned order is set aside and the matter is remanded to the adjudicating authority to decide afresh after waiving the pre-deposit of duty and penalties. the adjudicating authority will decide afresh after affording an opportunity of hearing to the appellant. the appeals are disposed of by way of remand.

Judgment:
2. The applicant filed these applications for waiver of pre-deposit of duty and penalties. The demand is confirmed In respect of the parts of wind operated electricity generators treating the same as excisable goods.

3. The contention of the applicant is that earlier the demand in respect of the same goods were raised in the case of M/s Bhilai Engineering Corporation. The adjudicating authority dropped the demand proceedings on the ground that the parts of wind operated electricity generators are exempted from payment of duty under Notification No.6/2000-CE. The Revenue reviewed the order and Commissioner (Appeals) also dismissed the appeal filed by the Revenue. The contention is that in the present proceedings, the applicants were manufacturing parts of wing operated electricity generators and supplied the same to Bhilai Engineering Corporation and the Commissioner of Central Excise in the impugned order held that they are not entitled for the benefit of Notification No. 214/86 on the ground that the goods which were manufactured on job work basis are not entitled for the benefit of this notification, as the final product manufactured out of the Job work goods is exempted from payment of duty. The contention of the applicant is that as in the case of Bhilai Engineering Corporation, the Commissioner (Appeals) allowed the benefit of Notification No. 6/2000, therefore, the applicants are also entitled for the benefit of Notification No. 3/2001 and 6/2002-CE which exempt from payment of duty in respect of parts of wind operated electricity generator. The contention is also that these towers etc. which are supporting structures for wind operated electricity generator are parts of wind operated generator as held in the case of CCE v. Techno Fab manufacturing Ltd. , therefore, the 4. The contention of the Revenue is that the earlier orders passed by the Commissioner (Appeals) were not before the adjudicating authority and the adjudicating authority had not considered the claim in respect of notification which exempts parts of wind operated electricity generator, therefore, the demand was rightly made.

5. In this case, in the proceedings initiated against Bhilai Engineering Corporation in respect of same parts where the demand was dropped by the adjudicating authority and the order was upheld by the Commissioner (Appeals) on the ground that these parts are exempt from payment of duty under Notification No. 6/2000. We find in the present case the same parts are manufactured by the applicant and the issue in respect of grant of benefit of Notification during the relevant period i.e. 3/2001, 6/2002 which exempt parts of wind operated electricity generator and this clam is not considered by the lower authority.

Therefore, the matter requires re-consideration by the adjudicating authority afresh. The impugned order is set aside and the matter is remanded to the adjudicating authority to decide afresh after waiving the pre-deposit of duty and penalties. The adjudicating authority will decide afresh after affording an opportunity of hearing to the appellant. The appeals are disposed of by way of remand.