9911796707
TMI Blog2007 (5) TMI 447X X X X Extracts X X X X X X X X Extracts X X X X ..... tructions. Two show cause notices dated. 17-6-2004 and 18-6-2004 were issued to it alleging that there was short levy of duty in regard to Aluminium Doors and Windows, Partitions, Frameless Doors, Curtain Walls and Structural Glazing and Aluminium Composite cladding manufactured by it. Notice dated 17-6-2004 alleging a duty evasion of over Rs. 36 lakhs during Jan 03 to Sept 03 was issued within the normal period stipulated in Section 11A of the Central Excise Act and notice dated 18-6-2004 demanding the short levy of over Rs. 36 lakhs for the period April 02 to March 03 was issued invoking the extended period permitted under the proviso to the same Section. Both the notices were adjudicated under Order-in-Original No. 38-39/04 dated 13-11-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso point out that the order-in-appeal of the Commissioner has been accepted by the revenue and that position was intimated to the appellant vide letter dated 16-5-2007. 4. In view of the above, the contention of the ld. Counsel for the appellant is that the issue remains settled between the parties by the aforesaid adjudication and appellate orders and therefore, the present appeal is required to be allowed. Ld. Counsel would rely on the judgment of the Hon ble Supreme Court in the case of Boving Fouress Ltd. v. CCE, Chennai reported in 2006 (202) E.L.T. 389 (S.C.) and submit that it is well settled that revenue cannot pick and choose on the question of dutiability depending upon the period of assessment. The contention of the ld. Couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t binding on this Tribunal and that it is well settled that a wrong assessment in one region cannot be a ground for making the same [Eskayef Ltd. v. CCE - 1990 (49) E.L.T. 649] wrong assessment in other areas. He would also rely on the judgment of the Hon ble Supreme Court in the case of Union of India v. Mohanlal Likumal Punjabi reported in 2004 (166) E.L.T. 296 and contend that a wrong concession granted would have no precedent value. 7. A perusal of the record makes it clear that except for the period covered, the notices had the same basis. It is the common case of the revenue in all these notices that the appellant had carried out some processes on the materials cleared from its factory (after payment of duty on those materials) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to impart on them an appearance of having their walls made up of glass or aluminium, as the case may be, around them. The appellants purchased aluminium sections from the manufacturer like M/s. Hindalco, Bhoruka and Mahavir Aluminium in accordance with specifications and parameters laid down in the specific contracts. They submitted that the catalogue of the producers of aluminium sections specify different series for doors, windows, fixed glazing, sliding windows and curtain walls. The sizes of the openings where the doors and windows are to be provided are measured from the site and outer frames of the doors/windows are made of those sizes by assembling etc. of aluminium sections either at the appellant s premises or in situ at site. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner took the view that the appellants case is covered by several judgments and no manufacturing is involved. It is that order that was accepted by the revenue and no appeal filed. Similarly, the adjudication order dated 21-12-2006 of the Commissioner also considered the whole range of activity carried out by the appellant and reached the conclusions that excise duty is not attracted. The Commissioner was also going by several judgments on the subject of manufacture and these judgments are specifically mentioned. In this situation, ld. Counsel for the appellant is right in his contention that it is after considering the operations in the factory also that the orders were passed by the Commissioner holding that there was no manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Mahindra Mahindra Ltd. v. CCE - 2005 (190) E.L.T. 301(Tri.). But we find that the Commissioner specifically considered the Larger Bench decision and did not find that judgment applicable to the facts of the present case and passed the order following the judgment of the Supreme Court in the case of Mohanlal Likumal Punjabi - 2004 (166) E.L.T. 296 (S.C.). Therefore, this submission has also no merit. 11. In view of what is stated above, clearly, the issue remains settled between the parties by the remand order of the Tribunal, the adjudication order dated 21-12-2006 of the Commissioner and order-in-appeal dated 6-10-06 of the Commissioner (Appeals). In the light of those orders, the present appeals are allowed after setting aside t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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