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TMI Blog2014 (11) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... rted in [2001 (7) TMI 176 - CEGAT, COURT NO. IV, NEW DELHI]. Respondent is a manufacturer, he should be entitled for exemption under Notifications No. 5/99-C.E., dated 28-2-1999 and Notification No. 6/2000-C.E., dated 1-3-2000 in respect of the CCA Units as they were manufactured at the site of construction for use in construction works at site as clarified by the CBEC Circular dated 18-5-1999. We also hold that where earlier proceedings on the same subject matter have already been decided against a party, there is no question of suppression of facts, wilful mistake, fraud, etc., warranting invocation of the larger period of limitation of five years under proviso to Section 11A(1) of the Act (as it stood then) instead of period of one year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 of the Act by the Superintendent of Central Excise wherein the respondent stated that he is not the manufacturer of CCA Units; that he is only a labour contractor for casting the CCA Units; the VPT did not direct him to obtain any licence under the Act; that as per the conditions of the contract, there was no obligation to cater to the Central Excise duty on CCA Units; that he had no independent existence in the contract programmed and controlled by the VPT and that the material in question did not belong to him. 4. The officials of the Central Excise Department did not agree with the above contention of the respondent and they were of the prima facie opinion that the work awarded to the respondent is extension of rock bund and modi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the respondent submitted the required information, he had dropped further proceedings. He therefore, contended that he was under a bona fide belief that the works executed by him are outside the purview of the Act. He also contended that the Department has not placed anything on record to establish the marketability of Tetrapods and CCA Units in question before treating them as excisable. He denied that he was a manufacturer of CCA Units. He contended that the ownership of the finished products and raw material lies with the VPT, that VPT supervises their entire production and every aspect including records and therefore he is merely a contractor and not a manufacturer. He also contended that break waters are barriers constructed in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not engaged on behalf of VPT, that the assessee is the manufacturer who supplied the goods as per the requirement of the VPT. He also held that the respondent did not inform the department of his activity, wilfully suppressed facts relating to manufacture of CCA Units and their removal without payment of duty and therefore the demand is well within the proviso to Section 11A(1) of the Act. He also held that the respondent is liable for penal action under Section 11AC of the Act and interest under Section 11AB of the Act. 7. Aggrieved thereby, the respondent filed CEA No. 253 of 2004 to the CESTAT, South Zonal Bench, Bangalore. 8. By Final Order No. 1081/2006, dated 9-6-2006, the said appeal was allowed holding, inter alia, that - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Challenging the same, the Revenue has filed the present appeal under Section 35G of the Act. 10. Heard Sri A. Rajasekhara Reddy, Senior Advocate appearing for the Revenue at the stage of admission. 11. He contended that the order of the Tribunal is contrary to law as the Tribunal errer on holding that the issue involved in this case stands settled by the adjudication Order No. 7/89, dated 23-6-1989 of the Additional Collector of Central Excise, Guntur; that the facts of the present case are different and distinct from the said case; that the various clauses in the work orders show that the respondent was an independent contractor; that the Notification No. 5/1999-C.E., dated 28-2-1999 and subsequent Notification No. 6/2000-C.E., dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of limitation of five years under proviso to Section 11A(1) of the Act (as it stood then) instead of period of one year prescribed under Section 11A(1) of the Act. The Tribunal has considered the record and has come to the conclusion that the respondent is supplying manufactured CCA Units on contract basis to VPT and that he is only a works contractor and not a manufacturer. This finding of fact by the Tribunal cannot be said to be perverse or based on inadmissible material or ignoring of material evidence. 14. Therefore, we confirm the Final Order No. 1081/2006, dated 9-6-2006 in Appeal No. Excise/253/2004 of the CESTAT, South Zonal Bench, Bangalore and dismiss this appeal of the Revenue. No costs. - - TaxTMI - TMITax - Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X
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