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TMI Blog2020 (7) TMI 317X X X X Extracts X X X X X X X X Extracts X X X X ..... ed at the site of the various petrol pumps. Applicability of the Notification No. 12/2012-CE - HELD THAT:- The construction work of a road or flyover is being primarily undertaken at the site and only some components, blocks are manufactured by the contractor at different site. In that case the benefit of the Notification No. 12/2012-CE is available. However, in case of the appellant, the primary activity is of manufacturing and fabrication and then only goods are being taken for assembly, erection or commissioning at a given petrol pump. We are of the view that by no stretch of imagination, the benefit of Notification No. 12/2012-CE can be extended to a manufacturing activity which is being undertaken at a factory and thereafter the fully manufactured pre-fabricated structures are taken in the form of the CKD/SKD condition for installation at the given site.pplicability of the Notification No. 12/2012-CE is concerned, the construction work of a road or flyover is being primarily undertaken at the site and only some components, blocks are manufactured by the contractor at different site. In that case the benefit of the Notification No. 12/2012-CE is available. However, in case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nufactured by the appellant contains not only the components fabricated at the factory site but certain other bought items also and cleared from the factory in knocked down condition through trucks for further erection, welding and affixing of the same to earth is done at the site. 2. It has been the contention of the Department that the appellant had cleared the canopies in knocked down condition comprising of certain structural parts manufactured at the factory and certain bought out items and the canopies were sent for assembly and erection at the site of the petrol pumps of various oil companies. It has been the contention of the department that all parts of the canopy system presented together at the customers site were integral part of the entire canopy system and together constituted the term pre-fabricated canopy supplied by the appellant to their buyers. It has further been added that so called bought out items were not accessories but integral components of the canopy without which the identity of the canopy cannot be acquired and the canopy cannot be assembled and erected at site. 3. Accordingly, the Department has issued three show cause notices details of which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notices were adjudicated at the first stage of adjudication vide following order-in-originals :- Sl. No. Order-in-Original No. Date Period Amount Central Excise duty confirmed (Rs.) Involved An amount under Rule 6 (3) confirmed (Rs.) Demand dropped allowed Cenvat credit (Rs.) 1. 24/PR. COMMR/CEX/ ADJ/BPL-1/2015 dated 21/12/2015 April, 2010 to 24 th February 2015 4,21,80,793/- 1,86,20,036/- 35,01,685/- 2. 01/PC/CEX/ADJ/BPL-1/2017 dated 31/01/2017 21 st Feb, 2015 to 30 th Nov 2015 1,28,73,845/- 78,67,799/- --- 3. 12/COMMR/CEX/ADJ/ BPL-1/2018 dated 27/04/2018 1 st Dec, 2015 to 31 st Oct 2016 2,08,91,880/- 61,12,920/- --- 6. The appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18 dated 7th May 2018, this Tribunal found that there is conflict in the facts as recorded in the order-in-original impugned in the earlier appeal of the assessee. Accordingly, the matter was remanded with direction to the adjudicating authority to decide the issue de-novo after providing reasonable opportunity of hearing to the appellant with liberty to file fresh evidence, as per law. As the issue in this appeal in similar to the issue in the precedent appeal, which have already been disposed of by way of remand, we deem it just and proper to allow this appeal by way of remand to the adjudicating authority. We further direct appellant assessee to file the representation in reply to the show cause notice within a period of 60 days from the date of receipt of the copy of this order and then to appear before the adjudicating authority and seek opportunity of hearing. The learned Counsel for the appellant assessee undertakes that they will not seek unnecessary adjournment in the matter and cooperate in the adjudication proceedings. Accordingly this appeal is allowed by way of remand. 7. In view of the above directions of this Tribunal, the matter was taken up by the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 73089010) manufactured in the factory (off site fabrication) are not entitled for exemption provided under Notification No. 8/96-C.E., dated 23-‗?-1996 to Notification No. 12/2012-C.E., dated 17-3-2012; (ii) I confirm the demand of Central Excise Duty amounting to ₹ 70,55,671 /- (Rupees Seventy lakh Fifty Five Thousand Six Hundred Seventy One only) (including Cess) out of total demand of ₹ 2,07,41,644/- for the period 21 Feb 2015 to Nov 2015 as proposed in the notice and is ordered to be recovered from the noticee under Section l1A(1) of the Central Excise Act, 1944. The noticee is directed to pay the same forthwith. (iii) I confrm the demand of interest at appropriate rate, on the amount at Sr. No. B(i) above, from the relevant date till the date of actual payment of Central Excise duty, under Section IIAA of the Central Excise Act, 1944. The noticee is directed to pay the same forthwith. (iv) I impose a penalty of ₹ 7O,55,671/- (Rupees Seventy lakh Fifty Five Thousand Six Hundred Seventy One only) on Noticee under Section IIAC of the Act read with Rule 25 of the Central Excise Rules, 2002. The noticee is directed to pay the S8l1'lC forthwit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty so imposed shall be payable, provided that such reduced penalty is also paid within 30 days of the date of communication of such order. (v) The demand of Cenvat credit amounting to ₹ 61,12,920/- [Rs. Sixty One Lakhs Twelve Thousand Nine Hundred Twenty only], being unsustainable, is dropped . 8. It can be seen from the above orders that the central excise duty has been confirmed by the Adjudicating Authority by denying the benefit of Notification No. 8/1996-CE dated 23 July 1996 and Notification No. 12/2012-CE dated 17 March 2012 to the appellant. However, the demand of the reversal of the Cenvat credit under Rule 6 (3) (1) of the Cenvat Credit Rules, 2004 has been dropped by the Adjudicating Authority. 9. Learned Advocate contended that benefit of the Notification No. 12/2012-CE was available to the appellant as fabrication works undertaken at the site have specifically been exempted from levy of central excise duty. The learned Advocate has taken us to the contents of the notification and the clarifications issued by the CBEC on the same and has claimed that as per the clarification issued by the CBEC vide Circular No. 1036/224/2016-CX. dated 06 July 2016, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit of Notification No. 12/2012-CE can be extended to a manufacturing activity which is being undertaken at a factory and thereafter the fully manufactured pre-fabricated structures are taken in the form of the CKD/SKD condition for installation at the given site. 13. In view of above, we find no force in the arguments advanced by the learned Advocate for allowing them the benefit of Notification No. 12/2012-CE dated 17/03/2012 as well as previous Notification No. 3/2005-CE dated 24/02/2005. Accordingly, we find that there is no merit in the appeal of the appellant. 14. So far as the appeal filed by the Department is concerned, the only ground on which the appeal has been filed by the Department is that the Adjudicating Authority erred in holding that there is no allegation in the show cause notice that the assessee/respondent was also availing Cenvat credit on the goods used for exempted goods. It has further been submitted that the Adjudicating Authority was wrong in holding that the figures/amounts/description mentioned in the trial balance for the relevant period do not show the amount of the Cenvat credit availed by the assessee/respondent on purchases of raw materia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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