2016 (10) TMI 483 - AT - Central Excise

Manufacture - whether the activity of profiles cutting from M.S. plates is amount to manufacture of excisable goods - appellant submitted that while computing demand, benefit of cum-duty price was also not considered - issues regarding limitation and cum-duty price were not raised either before lower authority or first appellate authority - Held that - there is no quarrel on the merit of the case that duty on the process carried by the appellant is payable. On limitation and issue of cum-duty price, on perusal of orders of both the lower authorities, we find that these issues were not raised. Since, the issues on limitation and valuation are mixed question of law and fact, it is a fit case for remand to examine the facts that whether any suppression of facts or mis-declaration etc. exist on the part of the appellant or otherwise. On cum-duty price also examination is required. We, therefore, remand the matter to the original authority to decide afresh on the issue of limitation and cum-duty price and to re-quantify the demand accordingly. The penalty also to re-quantified accordingly. - Appeal disposed of by way of remand

Issues Involved: Determination of whether the activity of profiles cutting from M.S. plates amounts to the manufacture of excisable goods.

Analysis:
The appeal was filed against the Order-in-Appeal upholding the Order-in-Original, rejecting the appellant's appeal. The main issue in question was whether the activity of cutting profiles from M.S. plates constitutes the manufacture of excisable goods. The appellant's counsel acknowledged the duty-ability of the product but argued against the invocation of the extended period of demand. It was contended that the matter was under consideration at various forums, making the extended period inapplicable. Additionally, the appellant raised concerns about the computation of demand not considering the benefit of cum-duty price. The counsel highlighted that these issues were not raised before the lower authorities and could be raised at any stage, including before the Tribunal.

The Assistant Commissioner representing the revenue reiterated the findings of the impugned order, emphasizing that the case involved clandestine removal, justifying the application of the extended period. The revenue relied on precedents such as the case of Tejas Networks India Ltd. Vs. Commissioner and Sanjay Industrial Corporation Vs. CCE to support their argument.

Upon careful consideration of the arguments presented by both parties, the tribunal noted that there was no dispute regarding the duty liability of the process carried out by the appellant. However, issues concerning limitation and the cum-duty price were not raised before the lower authorities. As these issues involve mixed questions of law and fact, the tribunal deemed it appropriate to remand the matter to the original authority for a fresh examination. The original authority was instructed to determine whether there was any suppression of facts or misdeclaration by the appellant, as well as to reevaluate the cum-duty price and re-quantify the demand accordingly. The penalty was also to be re-quantified based on the re-examination. Consequently, the appeal was disposed of by way of remand.

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