2017 (9) TMI 13 - AT - Central Excise

Sub-contract - the main appellant paid service tax on the work executed by them as a sub-contractor to the second appellant - fabrication of CW liners, pipes and bends, in terms of work order dated 15.07.2009 - whether the main appellant is required to pay Central Excise Duty on manufacture of pipes? - Held that - On careful consideration of various provisions of the said work order, we find that the main appellant cannot be considered as a labour contractor, simply providing labourers for certain work. It is clear that they have undertaken various fabrication work in terms of work order in their own account using the material supplied by the main contractor - we uphold the findings of the original authority regarding the duty liability of the main appellant with reference to manufacture of pipes and bends. Time limitation - Held that - the main appellant has undertaken manufacture of excisable goods and are liable to pay duty. The demand for an extended period is sustainable. However, the quantification of duty demand as well as the correctness of finding regarding confiscation and consequent redemption fine has to be re-examined by the original authority. Penalty u/r 26 of CE Rules, 2002 - Held that - we note that the second appellant is a limited company. In various decisions, the tribunal has held that penalty under Rule 26 can be imposed only on individuals and not on companies - the order has been passed exparte and the appellant had claimed that due opportunity has not been provided to them to defend their case. In fact they claimed that they have filed reply to the SCN 24.12.2011 which was not considered. The original authority is required to decide the case of penalty, afresh. Appeal decided against appellant in part and part matter on remand - Appeal allowed by way of remand.

Issues Involved:
1. Central excise duty liability of the main appellant for the manufacture of pipes.
2. Imposition of penalty on the second appellant under Rule 26 of Central Excise Rules, 2002.
3. Classification and marketability of the manufactured pipes.
4. Applicability of exemptions under various notifications.
5. Valuation method for duty liability.
6. Eligibility for CENVAT Credit.
7. Legitimacy of extended period demand and penalty.
8. Confiscation and redemption fine of detained goods.

Detailed Analysis:

1. Central Excise Duty Liability:
The main appellant, M/s Kakateeya Fabs (P) Ltd., was held liable for central excise duty on the manufacture of pipes and bends. The Tribunal agreed with the original authority’s findings that the main appellant cannot be considered merely a labour contractor. The work order and the activities undertaken showed that the appellant was involved in the fabrication of excisable goods using materials supplied by the main contractor. The Tribunal upheld the duty liability of ?1,91,61,777/- imposed by the original authority.

2. Imposition of Penalty on the Second Appellant:
The second appellant, Simplex Infrastructures Ltd., contested the penalty under Rule 26. The Tribunal noted that penalties under Rule 26 are typically imposed on individuals, not companies. The original order did not establish the necessary conditions for imposing such a penalty. The Tribunal directed the original authority to re-examine the penalty imposition afresh, noting that the second appellant claimed they were not given due opportunity to defend their case.

3. Classification and Marketability:
The pipes fabricated by the main appellant were classified under CETH 730539, under the heading ‘other tubes and pipes and steel.’ The Tribunal agreed with the original authority that the pipes, which emerged as distinct commercial products before being embedded, were excisable. The argument that the pipes were not marketable because they were made to specific requirements for the NTPC project was rejected.

4. Applicability of Exemptions:
The main appellant claimed exemptions under notification No.3/2005 CE and No.67/1995. The Tribunal found no legal basis for the retrospective application of amendments made by notification No.41/2011-CE. The exemption under notification No.67/1995 was also not applicable as the manufacturing did not occur within the factory premises of the appellant.

5. Valuation Method for Duty Liability:
The Tribunal found merit in the appellant's argument that the valuation method adopted by the original authority was incorrect. The original authority should have considered that not all steel inputs were used in the fabrication of pipes. The Tribunal directed the original authority to re-examine the quantification of duty liability, considering the appellant's claims about the use of steel for other items and the generation of scrap.

6. Eligibility for CENVAT Credit:
The main appellant's claim for CENVAT Credit on duty-paid steel items was dismissed. The Tribunal noted that the appellant received raw materials free of cost and did not pay central excise duty on such inputs, making the credit claim inapplicable.

7. Legitimacy of Extended Period Demand and Penalty:
The Tribunal upheld the demand for an extended period, agreeing with the original authority that the appellant suppressed facts and contravened various provisions of the Central Excise Act and Rules. The appellant's argument that they believed central excise duty was not applicable was rejected.

8. Confiscation and Redemption Fine:
The Tribunal found issues with the confiscation and redemption fine imposed by the original authority. There was no clear evidence of seizure, provisional release, or the availability of goods for confiscation. The Tribunal directed the original authority to re-examine these aspects.

Conclusion:
The Tribunal upheld the central excise duty liability of the main appellant but directed the original authority to re-examine the quantification of duty, the confiscation and redemption fine, and the penalty on the second appellant. The appeal was disposed of with these directions.

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