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TMI Blog2013 (10) TMI 841X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants had not discharged any duty even though there were tariff entries for structural and the process undertaken by the appellants was not limited to drilling holes and cutting the aluminium sections into sizes. The activity involved is correctly described as semi-unitized glazing system and the Tribunal took note of the fact that the assessee fabricated parts of structures and therefore it cannot be said that the Tribunal did not consider this aspect - there cannot be any basis for a bona fide conclusion on the part of the appellants - even to examine that the decision of the Tribunal was having any mistake, considerable discussion is required – there was no mistake apparent flowing from the order – Application for Rectification of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following submissions: a. Parts of structural glazing systems viz. aluminium windows, glass and other items on which duty has been demanded, the department had nowhere produced any evidence to show that aluminium windows, glass and other items have been manufactured by the appellants prior to the erection. b. That items such as angles, frames, glass etc. which have been used in the erection of the glazing system were bought by them from the manufacturer/vendor in cut to size form and on payment of applicable excise duty and that no further activity of manufacture have been undertaken on the same by the applicants apart from the activity of fixing it to the walls of the building. c. That during the process of erecting the semi-unitized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is the case of the appellants that in this case the Tribunal erred in concluding that extended period has been rightly invoked and reliance for this conclusion on the decision in the case of Man Structural (supra) was not proper. Further it was also submitted that the Tribunal failed to take note of the fact that the larger Bench of the Tribunal itself noted the fact that after remand by the Supreme Court, a Division Bench of the Tribunal had, in set of matters, remanded by the Supreme Court in the case of Elecon Engineering Co. Ltd. Vs. CCE [1999(107) ELT 337] had taken a view in favour of the assessee. In the case of Mahindra Mahindra itself, after the matter was sent back to the Division Bench after answering the reference, the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the hearing. First of all, it has to be noted that this Tribunal passed a very detailed order considering each and every submission made by the appellant. The first and the foremost glaring fact is the fact that the distinction between unitized structural glazing and semi-unitized structural glazing was brought up before the Tribunal for the first time. Even when this was brought up and even though a claim was made that duty had been paid in the case of unitized structural glazing, there was no opportunity for the Department to examine this claim and its correctness and according to the appellant this had a bearing on the conclusions. If the most important point which has a bearing on the issue as to whether there is manufacture or n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en following judicial pronouncements to decide if the impugned goods were liable to excise duty and if that was the case when Man Structural case was remanded taking a view that structural items are already covered by the tariff heading and this fact was noted by the Tribunal while rendering the decision, the appellants should have and could have examined their case in the light of the decision instead of waiting for further decisions on the same issue on remand. If the appellants case was not covered by the other cases which is what the Tribunal has come to the conclusion, there cannot be any basis for a bona fide conclusion on the part of the appellants. The above discussion would clearly show that even to examine that the decision of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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