9911796707
TMI Blog2024 (11) TMI 1176X X X X Extracts X X X X X X X X Extracts X X X X ..... ighly debatable and there is a very thin difference between whether the activity amounts to manufacture or otherwise. Therefore, in such case, the matter can be decided only on the ground of limitation without giving final conclusion to the merit of the case. As regard the issue raised by the appellant for demand being time barred, on careful examination of the facts and record, it is found that it is not a case where the appellant have out rightly evaded the duty, firstly, the activity involved is whether manufacture or otherwise covered by the various judgments cited by the Learned Counsel wherein, in various judgments, it is held that the activity of cutting, welding, bending etc. do not amount to manufacture. At the same time there are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant have no malafide intention and they have not suppressed any fact from department with intent to evade payment of duty. For the same reason, no penalty under Section 11 AC is imposable. Accordingly, the demand is set aside only on the ground of limitation without giving the conclusive findings on the merit i.e. whether the activity amounts to manufacture and otherwise. The impugned order is set aside, appeals are allowed. - HON'BLE MEMBER ( JUDICIAL ) , MR. RAMESH NAIR And HON'BLE MEMBER ( TECHNICAL ) , MR. C L MAHAR Shri Vipul Khandhar , Chartered Accountant appeared for the Appellant Shri Tara Prakash , Deputy Commissioner ( AR ) appeared for the Respondent ORDER RAMESH NAIR The appellant was registered with the depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise and discharging Central Excise duty. Therefore, if at all there is any duty payable, the same is available as Cenvat Credit to the customer. Hence, the entire excise is revenue neutral. He further submits that once the principal manufacturer is discharging the duty even the duty payable by the job worker get subsumed in the manufacture of final product by the principal. For this reason also, the duty is not chargeable. He also submits that the transaction of material received by the appellant is covered by Rule-4(5)(a) of Cenvat Credit Rules, 2004. Therefore, no duty liability can be fastened against the appellant. He further submits that the entire demand is time barred as the extended period was involved. He submits that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant such as cutting, welding, bending etc. as per specification/ design of the customer, amount to manufacture or otherwise. There are catena of judgments, some of the judgments are contrary. Therefore, it clearly shows that the issue was highly debatable and there is a very thin difference between whether the activity amounts to manufacture or otherwise. Therefore, in such case, we are of the view that matter can be decided only on the ground of limitation without giving final conclusion to the merit of the case. As regard the issue raised by the appellant for demand being time barred, on careful examination of the facts and record, we find that it is not a case where the appellant have out rightly evaded the duty, firstly, the activity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed almost after 3-4 years i.e. on 18.01.2017. Accordingly, entire demand is beyond the normal period. Hence, the same is not sustainable on the ground of limitation itself. Since, we hold that the appellant have no malafide intention and they have not suppressed any fact from department with intent to evade payment of duty. For the same reason, no penalty under Section 11 AC is imposable. Accordingly, we set aside the demand only on the ground of limitation without giving the conclusive findings on the merit i.e. whether the activity amounts to manufacture and otherwise. 5. Accordingly, the impugned order is set aside, appeals are allowed with consequential relief if any, in accordance with law. ( Pronounced in the open court on 21. 11. 202 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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