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TMI Blog2011 (2) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Commissioner. - Decided in favor of revenue. - 1090 OF 2009 - - - Dated:- 10-2-2011 - Dr. MUKUNDAKAM SHARMA, J. JUDGMENT 1. Delay condoned. 2. The present appeal filed by the appellant - Commissioner of Central Excise, Visakhapatnam arises out of an order dated 28.07.2008 passed by the Customs, Excise Service Tax Appellate Tribunal, South Zonal Bench at Bangalore (hereinafter referred to as `the Tribunal') in appeal No. E/132/2005. 3. Two primary issues fall for consideration in this appeal. The first issue is, as to whether or not the demand for payment of duty is barred by limitation, whereas the second issue is whether the items like chairs, beds, tables, desks, etc., affixed to the ground could be said to be immoveable assets and not liable to excise duty. The aforesaid two issues have arisen in the light of the rival submissions made on the basic facts of this appeal which are hereinafter being set out. 4. M/s. Mehta Company, Mumbai (the "assessee") are engaged in the business of interior decoration. The assessee provides composite services including woodwork, furniture items etc. They entered into contracts with customers for doing these works ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9(2), Rule 52A and Rule 173Q of the Rules; 1 (iv) Penalty equal to the duty demanded in (i) above should not be imposed on them under Section 11AC of the Act; 1 (v) Interest @ 24% p.a. from the first day of the month succeeding the month in which the duty ought to have been paid, till the date of payment of such duty should not be demanded from them under section 11 AB of the Act; and 1 (vi) The goods involved should not be confiscated under Rule 173Q (1) of the Rules. 9. M/s. Grand Bay Hotel,Beach Road,Visakhapatnamwas also asked to show cause as to why penalty should not be imposed under Rule 209A of the Rules for purchase and possession of the excisable goods on which duty of excise had not been paid. 10. The respondent - M/s. Mehta Co. and M/s. Grand Bay Hotel submitted their respective replies. The Commissioner of Central Excise vide order dated 31.12.2002 confirmed the demand of Rs. 43,59,710/- out of the proposed demand of Rs. 62,94,910/- under Rule 9(2) along with penalty of equal amount i.e. Rs. 43,59,710/- and directed the redemption of the confiscated goods after the payment of a fine of Rs. 1,00,000/- plus the duty and penalty adjudged. 11. Aggrieved ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the provisions of proviso is not satisfied in the present case, and therefore, it cannot be submitted that the demand is not barred by limitation. 15. We have considered the aforesaid submissions of the learned counsel appearing for the parties in the light of the records placed before us. So far as the issue with regard to limitation is concerned, since that goes to the root of the demand made, it is appropriate to deal with the same before we go into the second issue. 16. Section 11A of the Act empowers the Authority to demand excise duty in terms of the conditions laid down in the said provision as and when the pre-conditions mentioned therein are satisfied. 17. There is no dispute with regard to the fact that issuance of a notice for invoking the provisions of Section 11A of the Act is a condition precedent for a demand to be made under Section 11A of the Act. However, in the present case, a show cause notice was issued to the respondent herein making it a specific case that the respondent manufactured excisable goods as mentioned in the notice and covered under different chapter headings at the site of the customer and removed the same without payment of duty of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isable goods covered under different chapter headings, removed them without payment of proper duty of excise and that from the aforesaid action it is explicit that there was an intention on the part of the respondent to evade payment of duty particularly when the contract clause between the respondent and M/s. Adyar Gate Hotel Ltd. clearly mentioned that the contractors quoted rate would also include excise duty. 23.Although, the respondent has pleaded that it was done out of ignorance, but in our considered opinion there appears to be an intention to evade excise duty and contravention of the provisions of the Act. Therefore, proviso of Section 11A (i) of the Act would get attracted to the facts and circumstances of the present case. 24. The cause of action, i.e., date of knowledge could be attributed to the appellant in the year 1997 when in compliance of the memo issued by the appellant and also the summons issued, the hotel furnished its reply setting out the details of the work done by the appellant amounting to Rs. 991.66 lakhs and at that stage only the department came to know that the work order was to carry out the job for furniture also. A bare perusal of the reco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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