EMA INDIA LTD. Vs. CCE

JUDGEMENT

(1.) Shri R. Santhanam, Ld. Advocate for the appellants pleaded that the appellants have purchased certain inputs which were used by them in their factory for manufacture of the finished goods and they have also cleared these inputs as such after reversing the credit taken by them on these goods. The department's charge is that these inputs (bought out items) were cleared by them as parts and components as if the goods were manufactured by them. A demand of Rs. 7,63,747 was raised in the Show cause notice. The case was adjudicated by the Addl. Commissioner, who confirmed the demand of Rs. 79,178 and imposed equal amount of penalty under Section 11AC and the balance amount of the demand was dropped on the ground of being beyond the period of 5 years. The confirmation of the demand is totally wrong as they had submitted a detailed chart of the goods cleared by them as given at pages 143 to 158 of the paper book. This was not verified by the adjudicating authority and despite being satisfied, that bought out items were cleared by the appellants by reversing the Modvat credit, he confirmed the demand of Rs. 79,178 on these items treating them as manufactured by appellants. This finding of the original authority and confirmed by the Commissioner (Appeals) is being contested by them. He also pleaded that they have filed RT -12 Return with all necessary documents for assessment and the same were assessed finally and all the information was disclosed to the department, therefore, extended period of 5 years for demanding duty is not applicable in the present case. He also relied on the following other decisions:

(2.) He also pleaded that Larger Bench of the Tribunal in case of CCE, Vadodara v. Asia Brown Boveri Ltd., 2000 (120) ELT 228 (LB) has held that when input on which credit was taken, are not used but cleared as such for home consumption by the manufacturer from the factory then debiting the same rate of duty at which credit was taken meets the requirement of Rule 57F(l){ii) of Central Excise Rules. They cleared these goods by debiting the credit taken.

(3.) Shri S. Bhatnagar, Ld. JDR appearing for the Revenue pleaded that this is a case of dispute of classification and this should be referred to Division Bench, which is the competent court to decide the classificacion matter. He referred to para 8 and 9 of the show cause notice arid stated that this is a classification matter and classification of product has to be decided by the Division Bench.