2017 (7) TMI 445 - AT - Central Excise

Manufacture - the appellants are engaged in undertaking works contract which involved supply of material and service for which they procured materials like, aluminum doors, windows, curtain wall, structural glazing, suspended glaze, spider glass, sky lights and canopies, etc. on payment of proper excise duty - case of the department is that the appellants activity is of manufacture of the parts of doors and windows, structural glazing, curtain wall, spider glazing, etc. which is liable to excise duty - Held that - it is apparent that there is a mistake in quantification of demand. However, the same is subject to verification by the adjudicating authority - We also observed that the learned Commissioner (Appeals) decided the entire case solely on the basis of Larger Bench judgement of Mahindra & Mahindra 2006 (4) TMI 18 - CESTAT, NEW DELHI - the reliance solely on the basis of Larger Bench decision in the case of Mahindra & Mahindra (supra) is not proper on the part of the Commissioner for confirming the demand. The adjudicating authority shall pass a denovo adjudication order after verifying the quantification as submitted by the appellant and also by analyzing various judgements cited by the learned Counsel - appeal allowed by way of remand.

Summary

Issues:
Quantification of demand, application of Larger Bench decision in the case of Mahindra & Mahindra, invocation of extended period of limitation, dutiability of products, reliance on various judgments.

Quantification of Demand:
The appellants, engaged in works contract involving supply of material and service, procured materials paying excise duty. The department alleged manufacture of parts liable to excise duty, issuing a show-cause notice for recovery. The appellant contested the demand quantification, presenting a re-quantification chart showing discrepancies. The Tribunal noted the mistake in quantification and remanded the case for verification by the adjudicating authority.

Application of Larger Bench Decision:
The appellant argued against the Commissioner's reliance solely on the Larger Bench decision in the case of Mahindra & Mahindra for confirming the demand. The appellant cited various judgments distinguishing and invalidating the Mahindra & Mahindra decision. The Tribunal deemed the reliance on Mahindra & Mahindra alone as improper, leading to the remand of the case for a fresh adjudication considering all cited judgments.

Invocation of Extended Period of Limitation:
The appellant contended that conflicting views on the issue prevented the invocation of the extended period of limitation due to no suppression of facts. Citing judgments like Savira Industries and TISCO Ltd., the appellant argued against the applicability of the extended period. The Tribunal did not delve into this issue specifically but remanded the case for a denovo adjudication, leaving all issues open.

Dutiability of Products:
The appellant challenged the dutiability of the products based on the Mahindra & Mahindra decision, which was considered outdated and distinguished in subsequent judgments like Aluplex India Pvt. Ltd. and Ajit India. Citing Supreme Court decisions, the appellant argued against the applicability of the Mahindra & Mahindra decision. The Tribunal, while not deciding on the merit of the dutiability, remanded the case for a fresh adjudication considering all relevant judgments.

Reliance on Various Judgments:
Both parties presented various judgments to support their arguments. The appellant cited cases like Alumayer India and Ajni Interiors, emphasizing the invalidity of the Mahindra & Mahindra decision. The Revenue reiterated findings based on the impugned order and submitted written arguments citing relevant decisions. The Tribunal considered all submissions but remanded the case for a fresh adjudication, allowing the appeals by way of remand to the original authority.