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TMI Blog2019 (3) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... Limitation - Held that:- Appellant would not have gained much by evading any excise duty as the overwhelming part of the cost is of sheets on which they are entitled to CENVAT credit paid by the suppliers anyway. They are also paying service tax on corrugation element on it. So what is escaping tax is the small profit margin between the purchase price of the sheets and the sale price of the sheets. If the appellant is required to pay excise duty they will be entitled the CENVAT credit - the revenue has not made out a case to invoke extended period of limitation. The entire demand in the show cause notice is beyond the normal period of limitation and therefore, the demand and interest do not sustain - confiscations and penalties also do n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s at the factory premises and also premises of their dealers both local and outstation. They have also recorded statements of various officers of the appellant and came to a conclusion that the appellant has indeed manufactured profiles out of steel sheets which they purchased from M/s JSW Steel Ltd and have not discharged excise duty on them. Accordingly, a show cause notice dated 30.06.2015 has been issued to the appellant seeking to recover appropriate amount of Central Excise duty invoking extended period of limitation on the profiles manufactured and cleared by them along with interest. It was also proposed to impose penalties under Sec.11AC of Central Excise Act. 4. Learned counsel for the appellant submits that they are engaged in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not amount to manufacture but it was a service which they were rendering to their clients as per their requirement. They were collecting service charges for corrugation and have been paying service tax on such charges. The payment of service tax on these services under the head business auxiliary services has been duly reflected in all their ST-3 returns. 5. Learned counsel would, therefore, submit that the department cannot allege that they have suppressed or wilfully misstated or violated any Act or Rules with an intention to evade payment of duty. Therefore, the entire demand covering the period January, 2013 to October, 2014 issued vide show cause notice dated 30.06.2016 is completely time barred. He, therefore, submits that: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscation of goods and imposition of penalties on the co-noticees also do not sustain. 6. Learned departmental representative reiterates the arguments in the impugned orders and asserts that it is now well settled that in the case of Proflex Systems [2017 (353) ELT 142 (Gujarat)] that the sheets in coils and those cut and corrugated to make them suitable for use of making roofs are distinct commodities and they cannot be said to be the same. This decision of the Hon ble High Court of Gujarat has been upheld by the Hon ble Supreme Court in the case of Proflex Systems v Commissioner [2017 (355) ELT A83]. As a new distinct commodity as known to the market has come into existence, the corrugated roofs so manufactured by the appellant from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has undertaken an activity which amounts to manufacture in uncoiling the sheets, cutting them to sizes and corrugating them into form to be used as roofs. (2) Whether the appellant is liable to pay excise duty on such activity. (3) Whether a demand can be raised invoking extended period of limitation. (4) Whether confiscation of the goods from the appellants is sustainable and (5) Whether penalties can be imposed upon the appellants. 8. On the first issue, we find that the appellant has purchased steel sheets and coils, cut them into pieces and corrugated them by putting them through a machine and sold them. Such corrugated sheets/ profiles are used as roofs. The question as to whether this process of corrugation brings into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoices does not carry their case any further because the invoices were anyway not required to be submitted with the ST-3 returns. However, when a return is filed with the range officer or when registration is taken from the range officer, it is not inconceivable that the range officer would know the nature of the activity being undertaken by the assessee. We also find force in the argument of the learned counsel for the appellant that they would not have gained much by evading any excise duty as the overwhelming part of the cost is of sheets on which they are entitled to CENVAT credit paid by the suppliers anyway. They are also paying service tax on corrugation element on it. So what is escaping tax is the small profit margin between the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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