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TMI Blog2015 (9) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Supreme Court in the case of Uniworth Textile Ltd. Vs CCE (2013 (1) TMI 616 - SUPREME COURT) clearly ruled that mere non payment of duty is not equivalent to collusion or wilful suppression of facts and in order to invoke extended period specific and explicit allegation must be proved by the Revenue. In the present case, the adjudicating authority has not brought out any such allegation of suppression of facts. - Demand set aside. - Appeal Nos. E/294/2009, E/364/2009 & E/CO/28/2011 - Final Order No.41087-41088/2015 - Dated:- 4-9-2015 - Hon ble Shri R. Periasami, Technical Member And Hon ble Shri P.K. Choudhary, Judicial Member, JJ. For the Appellant : Shri C. Venugopal, Consultant For the Respondent : Shri R. Subramanian, AC (AR) ORDER Per R. Periasami As both the assessee's appeal and Revenue appeal are arising out of a common impugned order, they are taken up together for disposal. 2. The brief facts of the case are that the appellants are a SSI unit engaged in the manufacture of scaffolding, shuttering and propping, items falling under Chapter sub-heading No.7308 of the First Schedule to the Central Excise Tariff Act, 1985. Based on the intel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y various customers. He explained with the help of technical write up of diagram of pipes and sheets which are received before processing and the pipes and sheets after processing. All these items are used in scaffolding of the construction of buildings. He submits that the activity carried out by them does not amount to manufacture and no new commodity emerges out and there is no marketability since after fabrication it was returned to the principal supplier. There is no sale of goods. Even after drilling, threading, bending and welding, there is no change in the character of steel pipes and sheets which continue to remain as pipes and sheets. The department failed to establish the test of manufacture . He relied various Supreme Court and Tribunal decisions holding the above activities are not amounting to 'manufacture'. He relied the following citations :- (i) CCE Vs Deepak Galvanising Engg. Indus. P. Ltd. 2008 (28) ELT 40 (Tri.-Bang.) (ii) CCE Vs Deepak Galganising Engg. Indus. P. Ltd. 2015 (315) ELT A90 (A.P) (iii) Elecon Engg Co. Ltd. Vs CCE 2005 (190) ELT 195 (Tri.-Del.) (iv) CCE Vs Elecon Engg. Co. Ltd. 2012 (277) ELT A84 (SC) (v) Simplex Concr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006 (204) ELT 83 (Tri.-Mumbai) (v) Raunaq International ltd. Vs CCE Surat 2001 (138) ELT 1009 (Tri.-Del) (vi) Aruna Industries Vishakhapatnam and Others 1986 (25) ELT 580 (Tribunal) (iv) Mahindra Mahindra Ltd. Vs CCE Aurangabad 2006 (201) ELT 27 (Tri.-Del.) (v) CCE Vs Kay Kay Press Metal Corporation 2013 (297) ELT 40 (Guj.) 4.2 He also submitted that the adjudicating authority has not computed the value or nor given any break up as to what is excluded and what is included. On valuation, the department took up the raw material supplier details for arriving at the cost of raw materials since they have not produced any raw material. He merely relied on the supplier's details. However, the value of clearances excluded as shown in para 23 of the impugned order is neither supported by any worksheet nor it has even a remote resemblance to the value exclusion claimed in the worksheet furnished by them. He submits that duty liability redetermined is not supported by duty calculation work sheet. In the absence of statistical worksheet demand of duty on the strength of assumed lump sum amount of value of clearances, demand is not sustainable in law. Therefore, the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Forms which are used as scaffolding materials by various construction companies. The entire fabrication activity was carried out by the appellants on job work basis where the duty paid steel pipes and sheets are supplied by the construction firms and same are returned to them after fabrication and they received only labour charges. The details of description of the items and usage are dealt by the Commissioner in detail at para 17 18 of OIO. The appellants carried out threading, punching/drilling holes, welding, bending on steel tubes and steel sheets. The adjudicating authority held that these activities amounts to manufacture as per Section 2(f) of the Central Excise Act and are excisable and classifiable under Chapter 7308 of CETA and confirmed the excise duty by invoking the larger period. The appellants contended that the demand is hit by limitation as well as on merit as there is no suppression of facts as they were under bonafide belief that the said activity does not amount to manufacture as held by various Tribunal decisions. 8. Therefore, we propose to discuss first whether the demand is hit by limitation, whether extended period invoked is justifiable and whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs CCE (supra). Therefore, there is enough justification in favour of the appellant and there was no suppression of facts with intent to evade non-payment of duty. 10. In this regard, the Tribunal on identical issue of fabrication of steel structurals in the case of CCE Vs TELCO Ltd. (supra), Raunaq International ltd. Vs CCE (supra) and Mahindra Mahindra Ltd. Vs CCE (supra) clearly held that extended period not invokable in such cases as the appellants are under bonafide belief that such structures are not excisable and charge of suppression of facts not sustainable and set aside the impugned orders. 11. The Hon'ble High Court of Gujarat on identical issue of limitation in CCE Vs Kay Kay Press Metal Corporation (supra) upheld the Tribunal order and dismissed the Revenue appeals. The High Court order is reproduced as under :- 1.1 The appeal was admitted for consideration of the following substantial question of law formulated by this court. Whether the Tribunal below committed substantial error of law in allowing the Appeal filed by the assessee on the question of limitation on the ground of divergence of views at the relevant point of time although according ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... many of which are in favour of the assessee holding the field, no suppression or mis-statement can be attributed to the assessee, to entertain the same belief. As admittedly, in the present case, judgment prior to Larger Bench in the case of Mahindra Mahindra Ltd., were lying that the processes allegedly adopted by the appellant did not amount to manufacture, we are of the view that the demand raised beyond the period of limitation, by invoking extended period, is barred. As such, irrespective of the fact as to whether the appellants themselves have undertaken the said activity or not, the demand is required to be quashed on the above issue itself. Ld. SDR appearing for the Revenue have placed on record the written submissions, which we find are mainly dealing with issues other than limitation. 3.1 The Tribunal was justified in recording the aforesaid findings. In the facts of the case, it was not possible to ascribed any willful suppression or mis-statement on the part of the assessee for not paying excise duty because during the period in question, various decisions of the Tribunal were to the effect that the activity of cutting, bending, bunching of plats or channels in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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