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TMI Blog2017 (5) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... ces raised by the appellant, we are constrained to answer the questions, as framed, including one framed via this order, in favor of the appellant - The matter is remanded to the Adjudicating Authority for a fresh decision - appeal allowed by way of remand. - C.M.A. No. 66 of 2011 and C.M.P. No. 1 of 2011 - - - Dated:- 5-4-2017 - Rajiv Shakdher And R. Suresh Kumar, JJ. For the Appellant : Mr.T.R.Ramesh For Respondent : Mr.S.Rajasekaran JUDGMENT [ Judgment of the Court was made by Rajiv Shakdher, J.] 1. The captioned appeal was admitted, vide order dated 11.01.2011, when, the following substantial questions of law were framed for consideration by this Court: (i) Whether or not Appellate Tribunal was in error in not considering the jurisdiction to issue the Show Cause Notice, beyond the normal period by the incompetent authority and thus the same is void ab initio? (ii) Whether or not Appellate Tribunal was in error in holding that the appellant had suppressed the manufacture of the activity warranting invocation of extended period of time limit under proviso to Section 11A of the Central Excise Act, especially when the matter involves interpretatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndicated hereafter: Year Amount Rs. 1995-1996 18,87,289/- 1996-1997 16,38,816/- 1997-1998 1,16,065/- 3.5. It is pertinent to note that during the course of inspection, the Officers of the Department also recorded the statement of a partner of the appellant, on 30.11.2000, which is also the date, when, apparently, the investigation into the affairs of the appellant stood completed. 3.6. Accordingly, the Department came to the prima facie conclusion that excise duty was payable in respect of the aforesaid years for clearance made over and above the exemption limit. The component of duty worked out in this behalf was ₹ 1,82,108/-. As to the manner, in which, the said amount had been calculated was set forth in Annexure A, the relevant details of which are extracted hereafter: Year Exemption Limit Value Exceeding Exemption Limit Duty @ 5% 1995-96 30 LAKHS 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c 2(f). (b) We state the mere cutting of wire would not amount to manufacture as per law. We place reliance on the ratio of decision in the following cases. .... (ii)(a).In sum, it was stated that mere cutting of wires wound not amount to manufacture. (iii).The computation of aggregate value of clearance of manufactured products by the Department was not correct. The inclusion of tailor-made items/goods, made, as per specific design given by the customers, which could not be bought and sold in the market had to be excluded from the aggregate value of clearances. The emphasis was on the fact, that if, tailor-made goods are excluded, the appellant would be well within the exemption limit qua the three years, which were in issue. (iii) (a). It was also suggested that manufacture alone would not make the goods dutiable, unless marketability was established. (iv).There was no wilful suppression of facts. The statement of the partner recorded on 30.11.2000, was not voluntary. The said statement was recorded, without the record placed at the disposal of the person making the statement, as the books had already been secured by the Officers of the Department on 22.05.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n some occasions failed to take into account the fact that this was done at the premises of the customers, and not at the appellant's premises. (iii).Bought out items, which were supplied to the customers, as such, could not be included in the value of clearances, as they were not subjected to any process. (iv).The furnaces manufactured, as per the customers specifications, which were delivered to the specified site, albeit, in CKD condition and embedded in earth could not have been included in the aggregate value of clearances. 9.1. It is also the submission of the learned counsel for the appellant that in its reply to the SCN, a specific ground of challenge was taken, which was that the SCN had been issued by a person, who was not vested with the requisite authority, in that behalf. 9.2. The learned counsel relied upon the first proviso to Section 11A (1) of the Act in this connection. 9.3. It was submitted that the SCN could only have been issued by the Commissioner of Central Excise, as it was based on an allegation of fraud/ suppression having been employed by the appellant. 9.4. The learned counsel submitted that in this case, the SCN was issued by the J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Notice lacks jurisdiction cannot be acceded to..... 11.2. As regards the remaining aspects, Mr.Rajasekaran relied on the impugned order. 12. Heard the learned counsels for the parties and perused the record. 13. According to us, the learned counsel for the appellant, is right in his submission that the Tribunal via the impugned order, has only decided the issue of limitation and the issue pertaining to the aspect concerning, as to whether cutting of wire would amount to manufacture. The other aspect of the matter, to which, reference is made by the learned counsel for the appellant, that is, as to whether furnaces, which were transported to the customers' site in CKD condition and thereafter, embedded in earth were goods or not was not decided. Similarly, the aspect concerning, bought out goods being treated as manufactured goods, due to lack of correlation with purchases, is not dealt with in the impugned order. 14. Furthermore, in so far as the challenge to the authority of Joint Commissioner to issue the SCN is concerned, quite clearly, the record shows that the appellant, right from inception, had taken the stand that the SCN was issued by an authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner of Central Excise or by the Joint Commissioner, albeit, with the approval of the Commissioner of Central Excise. 15.1. The record also shows that the appellant continued to raise this ground before the first appellate authority i.e., the Commissioner of Central Excise as also before the Tribunal. Despite, a specific ground having been taken before both the authorities, there has been a failure on the part of the said authorities, to discuss the issue relatable to jurisdiction, which, as is obvious, goes to the root of the matter. 16. Thus, having regard to the foregoing discussion, we are constrained to note that vital issues, which had been raised by the appellant, were not dealt with, by the authorities below. 16.1. Furthermore, we must note that in the order of the Tribunal, there is no discussion, as to how it came to the conclusion that there has been suppression of material facts by the appellant, except based on an answer to a query raised by the Bench, which was directed to the Consultant of the appellant. A perusal of the SCN would show that suppression was alleged against the appellant on account of the fact that clearances of Electric Furnace and Heating ..... X X X X Extracts X X X X X X X X Extracts X X X X
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