Commissioner of C. Ex. vs Delphi Automotive Systems Ltd.

Heard Sri B.K. Raghuvanshi, learned counsel for the appellant and Sri Nishant Mishra, learned counsel for the respondent. The Central Excise Appeal No. 85 of 2010 has been filed against the order of remand dated 20-10-2003 passed by Customs, Excise and Service Tax Appellate Tribunal in Appeal Nos. E-584 and 585/2002-NB(B) [ 2004 (92) ECC 651 ].

The respondent herein are manufacturers of complete car air-conditioner or parts thereof. It was stated that the respondents besides manufacturing auto parts, they are manufacturer of air-conditioning machines to be fitted in the cars, that apart from parts of air-conditioning system. They also supply compressor to various car manufacturers namely M/s. Daewoo Motors India Ltd. and M/s. General Motor India Ltd. The duty was levied by the order-in-original by the authority concerned holding that the respondent is manufacturer of complete air conditioners to be fitted in cars. The Commissioner Central Excise who passed the order confirmed the demand and also levied penalty of the same amount by invoking Section 11AC read with Rules 173(a) of the Central Excise Rules. Penalty of Rs. 10 lakhs was imposed on Sri Dinesh Chabbra, Chief Financial Officer of DAS Ltd. under Rule 209A of Central Excise Rules. Interest was also levied. The said order was challenged by the respondent herein before the Tribunal who by the order under appeal has allowed the appeal and set aside the levy of penalty.

In the memo of appeal following substantial questions of law have been sought to be raised.

(a) Whether while remanding the matter for adjudication afresh, the Appellate Tribunal being creation of the statute itself can take away the enforcement/application of the statutory provisions of Section 11AC of the Act prior to adjudication by the Adjudicating Authority in pursuance to the order of remand passed by the Appellate Tribunal?

(b) Whether the impugned order of the Appellate Tribunal holding the penalty u/s 11AC to be not imposable while remanding the case for adjudication afresh, is wholly premature and uncalled for?

(c) Whether the observation of the Appellate Tribunal that the matter is one of interpretation and application of Rule 2(a) of Interpretative Rules, is wholly incorrect and misconceived inasmuch as the question of classification and the question of mis-declaration and clearance of goods are question of fact and therefore, the Appellate Tribunal cannot restrain the hands of the Adjudicating Authority on the question of mis-declaration and consequences thereof under the Act and the Rules, while remanding the matter to record findings of fact with regard to classification and benefit of exemption notification?

(d) Whether imposition of penalty u/s 11AC of the Act depends upon the findings of fact which may be arrived at in the adjudication order and as such the restriction placed by the Appellate Tribunal in the impugned order holding no imposition of penalty even prior to the adjudication of the case, shall render the impugned Appellate Order to be arbitrary, illegal and unjudicial?

(e) Whether the impugned order of the Appellate Tribunal results in prohibiting/suspending the enforcement of the provisions of Section 11AC of the Act which the Appellate Tribunal does not have the power to do being the creation of statute itself?

However during the course of argument, the learned counsel for the appellant confined his argument with respect to only that portion of the order of the Tribunal whereby the Tribunal while remanding the matter observed that the penalty u/s 11AC of the Central Excise Act is not imposable either on the appellant-company or on its financial advisor on Sri Dinesh Chhabra.

It was submitted that the Tribunal should have remanded the matter back to the Commissioner in its entirety by leaving the matter open with regard to penalty also. In reply, Sri Nishant Mishra, Advocate submits that Tribunal has committed no error in holding that it was not a case for levy of penalty as the issue involved is one of interpretation and application of Rule 2(a) of the Interpretative Rules.

Considered the respective submissions of learned counsel for the parties and perused the record. The Tribunal has remanded the matter back to decide the dispute in view of the Circular, dated 25-9-2002. It may be noted that there were divergent views with regard to exemption of parts of air-conditioning machine. The Central Board of Excise and Customs, New Delhi issued the aforesaid Circular, dated 25-9-2002 to set at rest the said controversy. In the circular the Board noticed the order of CEGAT in the case of 1994 (69) ELT 150 wherein it has been laid down as to what would construe the essential parts of an air-conditioning machine. It has been laid down that the components which are required for completion of one air-conditioning machine could be reconsidered as essential.

Keeping the said decision in mind the circular provides the following would be essential elements of air-conditioning machine:-

(i) Evaporator (cooling) coil,

(ii) Condenser Coil,

(iii) Motor,

(iv) Fan or blower for circulating the air,

(v) Compressor, and

(vi) Capillary line (expansion valve)

The Tribunal as stated herein above restored the matter back to the Commissioner to re-decide the issue in the light of the above circular. So far as the penalty is concerned we are of the opinion that the Tribunal has rightly set it aside. Mens rea is an essential part for levy of penalty. Where a provision of statute is not clear and there was divergent judicial pronouncements, it cannot be said the there is mens rea on the part of manufacturer if he chooses to follow his course of action in the light of one of the judicial pronouncements. It has been rightly observed by the Tribunal that the issue is one of interpretation and application of Rule 2(1) of the Interpretative Rules.

Viewed as above we do not find any substance in the aforesaid argument of the learned Standing Counsel that the penalty matter should have been left open for re-consideration by the Commissioner. Clearly, no case of levy of any penalty was made out and the penalty order was rightly set aside.

There is no merit in the appeal. It is accordingly dismissed. No order as to costs.