Customs, Excise and Gold Tribunal - Bangalore
R.S. Avtar Singh And Co. And Harji ... vs The Commissioner Of C.E. on 1 February, 2007
Equivalent citations: 2007(118)ECC137, 2007ECR137(TRI.-BANGALORE), 2007(213)ELT105(TRI-BANG)
ORDER S.L. Peeran, Member (J)
1. The assesses and the Department have filed these appeals against a common Order-in-Original No. 48/2003-04 (RP) (Denovo) dated 27.01.2004. The Revenue proceeded against the appellants holding that the activity of fabrication of various structures like columns, Crane, Griders, Trusses, Roof Griders, Purlins, Bracings, etc. amounts to manufacture and in view of this contention the demands were confirmed. However penalty has not been imposed. Therefore the Revenue has filed these appeals seeking imposition of penalty. The Revenue is also aggrieved with the portion of the order dropping the demands for the period earlier to 1.3.1988 on the ground that the Chapter Heading 73.08 was not in existence prior to 1.3.1988. The matter is heard in detail. Both the sides reiterated their submissions.
2. The learned Counsel submits that the demands are barred by time. He submits that the demand pertains to period from 10/87 to 11/88 but the show cause notice was issued on 09.2.89. The learned Counsel submits that the demand prior to August 1988 is barred by time. However demand pertains to September 1988 to the date of show cause notice, i.e. 09.2.1989 is required to be re-computed. It is his submission that the entire facts were know to the Department. The Department had issued show cause notice and the matter had been adjudicated. Therefore in terms of the Apex Court judgment in case of Nizam Sugar Ltd. 2006 (197) ELT 465 (S.C.), the demands are barred by time as they were adjudicated and the facts were know to the Department. Further he submits that on merits, the Tribunal's Larger Bench in case of Mahindra and Mahindra Ltd. v. C.C.E, Aurangabad, Chandigarh, Kanpur and Chennai has decided the issue against the assessee. However, the Tribunal in the case of Punjab Chemi Plants Ltd. and Ors. v. CCE, Chandigarh by Final Order No. 1079-81/05-Ex dated 26/27.12.2005 have set aside the demands on time bar holding that there was no willful suppression of the facts. He submits that the said judgment has been rendered after the Larger Bench's judgment was pronounced. In the present case, there was no intention to evade payment of duty. He submits that the Tribunal in the assessee's own case by Final Order No. 1057-1068/99 dated 11.5.99 had set aside the confirmed demand. Therefore the demands are not sustainable. He prays for setting aside the demands solely on the ground of time bar.
3. The learned DR defends the order and submits that in large of number of judgments it has been clearly held that the activity carried out by the assessee would be dutiable. As regards the invocation of larger period, he submits that all the facts were not known to the Department but subsequent proceedings were initiated. He distinguishes the judgment of the Apex Court in the case of Nizam Sugar Ltd. (supra) and relies on the ruling rendered in the case of Oriental Construction Co. v. Commissioner of Central Excise, Pune-II 2006 (199) ELT 503 (Tri. - Mumbai) wherein the larger period has been confirmed.
4. On a careful consideration of the matter, we notice that in the present case, prima facie the adjudication was prevented the Final Order being passed in the assessee's favour holding that the activity of fabrication of steel structurals amounts to manufacture and hence the items are classifiable under sub heading 7308.90 of the Central Excise Tariff. In view of this position, the judgment rendered in the case of Oriental Construction Co. cited supra is clearly distinguishable while we hold that the items manufacture would bring into existence as held in the case of Mahindra & Mahindra Ltd. (supra). However, the facts of the case clearly shows that the Department were well aware of the proceedings; that the manufacture of the goods; that earlier proceedings and resulting in orders being assessee's favour; that large number of judgments in the assesee's favour. Therefore the demands in respect of the appeals of E/2108/2004 and E/2313/2004 are set aside while the Department's appeals No. E/291/2005 and E/253/2005 are dismissed.
5. We also make it clear that in so far as the demand pertains to M/s R.S. Avatar Singh & Co. in Appeal No. E/2108/2004, a part of the demand is within the period of limitation. Therefore the Revenue should re-compute the duty demand in respect of M/s R.S. Avtar Singh & Go. The above appeals are disposed of in the above terms.
(Pronounced and dictated in the open court)