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TMI Blog2006 (4) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... l elements required for the construction are prepared in the appellant s factory. 2. The appellant took central excise registration for the factory and cleared the elements after payment of central excise duty. The goods were described in the clearance documents as aluminium doors, windows, frame work and multiple aluminium sheets etc. The items cleared from the factory were moved to work sites and utilised there along with other items for erecting curtain walls and other structures. These duty paid clearances went on from 1997-98 to 2000. 3. On 12th January 2000, the appellant addressed a letter to the jurisdictional Deputy Commissioner pointing out that it has been advised that its activity is not excisable and no duty was required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 710401 72051857 76658544 16 12265367 3 1999-00 203565540 113464983 90100557 16 14416089 4 2000-01 148484000 107614057 40869943 16 6539191 5 2001-02 137255272 80883422 56371850 16 9019496 Total 455489 MONTH Clearance as per Balance Sheet Clearance as per RT-12 Returns Diff. Rate of duty % Duty on differential value (Rs.) 1 2 3 4(2-3) 5 6 May 02 6566137.69 5162004.00 1404133.69 16% 224661.39 Jun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .T. 451 and in Lokhandwala Hotels Pvt. Ltd. v. C.C.E., Mumbai - 2005 (182) E.L.T. 188. The contention is that civil construction being an activity of raising permanent structures and fixtures as immovable property and immovable properties being not goods, these structures are not excisable. The ld. counsel points out that it is well settled that immovable property does not attract central excise duty. 6. Learned counsel has also brought out that appellant had explained in detail before the Commissioner that the civil constructions in question involved design, supervision and technological support. It is, therefore, the learned counsel s submission that appellant was right in discharging duty only on the items prepared in the appellant s f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This is made clear by the contracts themselves, inasmuch as rate of payment is per sq. meter. From this, it is clear that neither tender amounts nor income from construction works stated in the balance sheet relate to the cost of elements (for construction) prepared in the appellant s factory. Therefore, the Central Excise authorities could not at all have treated those amounts as constituting the cost of goods manufactured in the factory. The appellant s contention that a big part of the cost relates to activities at construction sites are also right inasmuch as these projects involved sophisticated design, control and supervision in addition to cost of materials. The costing produced by the appellant before the authorities showed that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand which falls within the permissible period also, the appellant has many objections starting with excisability. Those objections are required to be considered afresh and adjudicated upon by the competent authority. There are also instructions of the Board relating to valuation of captively used goods. Those instructions would be relevant to the valuation of the goods, in case the items are held to be excisable. 12. In the view we have taken above, the duty demand made for the extended period is set aside and the demand raised for the normal period remanded to the original authority for fresh adjudication after giving the appellant an opportunity to file reply and hearing. 13. Provisions relating to penalty have no place in a case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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