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2013 (1) TMI 278 - AT - Central ExciseWaiver of pre-deposit - Stay of recovery - Extended period of limitation - Excisability of structures - Applicants are manufacturing aluminum sliding windows & aluminum doors - under Chapter 76 - Availing SSI exemption - Items were directly comes to the site where the structure was erected and glass was fixed - Applicant contended that aluminum assembly of Glazing Systems, the glazing is of glass which comes into existence at site and it is immovable property - Held that - There are divergent views on the issue as decided in case of MAHINDRA & MAHINDRA LTD.(2005 (11) TMI 103 - CESTAT, NEW DELHI). Find merit in the contention of the applicant that extended period of limitation is not available to the Revenue. On the basis of decision in case of ALUMAYER INDIA PVT. LTD. (2012 (8) TMI 690 - CESTAT, BANGALORE) applicant failed to make out a case of total waiver of duty. Taking into facts and circumstances of the case, the demand for the normal period and the availability of credit on the inputs, the applicants are directed to further deposit an amount of Rs. 50 lakhs.
Issues:
Waiver of pre-deposit of duty, interest, and penalties for Aluminum Sliding Windows, Aluminum Doors, and Glazing Systems under Chapter 76 of the Central Excise Tariff Act, 1985. Analysis: The applicant sought waiver of pre-deposit of duty, interest, and penalties amounting to Rs.4,48,54,486/- for manufacturing and clearing Aluminum Sliding Windows, Aluminum Doors, and Glazing Systems. The contention was that items were within the small scale exemption limit, and glazing, being immovable property, should not be liable to duty. The applicant argued that no factory work was done for glazing, and service tax was already paid for the activity. It was claimed that a significant portion of the demand was time-barred due to divergent views before the Tribunal's decision in a previous case. The revenue, however, relied on a Tribunal decision in a similar case to support the demand for aluminum structures under Chapter 76 of the Tariff. The Tribunal noted the issue of excisability of structures had divergent views before a specific decision. Considering the demand within the normal limitation period, the amount was determined to be Rs.12,30,4978/-. The Tribunal found the applicant failed to establish a case for total waiver of duty. Consequently, the applicant was directed to deposit Rs.50,00,000/- within eight weeks. Upon this deposit, the remaining duty, interest, and penalty were waived, and recovery stayed during the appeal's pendency, with a compliance deadline set for 27.11.2012.
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