Custom, Excise & Service Tax Tribunal
M/S. Ahuluwallia Contracts India Ltd vs Cce, Delhi-Iii on 17 April, 2013
IN THE CUSPTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Date of Hearing/ Decision:17/04/2013
Honble Smt. Archana Wadhwa, Member (Judicial)
Honble Shri Rakesh Kumar, Member (Technical)
1. Whether Press Reporters may be allowed to see the order for
Publication under Rule 27 of the CESTAT (Procedure) Rules, 1982.
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
authorities?
Appeals Nos.E/2906/2005-EX (DB) & E/1516/2006-Ex (DB)
(Arising out of common Order-in-Original No.20/CE/05 dated 27.5.2005 passed by the Commissioner of Central Excise (Appeals), Delhi-III, Gurgaon)
M/s. Ahuluwallia Contracts India Ltd. Appellant
Vs.
CCE, Delhi-III Respondent
CCE, Delhi-III Appellant
Vs.
M/s. Ahuluwallia Contracts India Ltd. Respondent
Appearance:
Rep. by Shri R.K. Mathur, DR for the appellants.
Rep. by Shri J.P. Kaushik, Advocate for the respondent.
Coram: Honble Smt. Archana Wadhwa, Member (Judicial)
Honble Shri Rakesh Kumar, Member (Technical) Final Order Nos.56265-56266/2013 /Dated:17.4.2013
Archana Wadhwa:
Both the appeals, one filed by the assessee and the other filed by Revenue are being disposed by a common order as they arise out of the same impugned order of the Commissioner of Central Excise, Gurgaon.
2. As per the facts on record, the appellant is engaged in the manufacture of Aluminium door and window frames for which they entered into a contract with various corporate centres. Inquiries conducted at the corporate centres i.e. the appellants buyers premises revealed that n duty of excise was being paid by them on the said aluminium doors and windows, which were being fabricated at site only. Accordingly, proceedings were initiated against the appellant for confirmation of duty of Rs.64.49 lakhs approximately.
3. During the curse of adjudication, the appellant took a stand that the said fabrication was got done by them from various further sub-contractors out of the raw materials supplied by the appellant. As such, it is the sub-contractors, who have actually fabricated the said doors & windows and has to be held as the manufacturers. They further contended that the demand is barred by limitation inasmuch as they were also doing identical work at Noida and no demand was raised by the excise authorities at Noida making them belief that the said activity is not excisable. Further, certain errors were pointed out by them.
4. The Commissioner by his impugned order extended the benefit of installation cost to the assessee on the ground that such activity was post-manufacturing activity, not attracting any duty of excise. However, he confirmed the demand of duty of Rs.23.18 Lakhs approximately, by rejecting the assessees pleas of sub-contractors being manufacturers and after grant of benefit of small scale exemption notification. Further, penalty of equivalent amount was imposed upon the appellant along with confirmation of interest.
5. The appellant is in appeal against confirmation of demand and interest and imposition of penalties whereas the Revenue is in appeal against that part of the impugned order of the Commissioner vide which he has extended the benefit of SSI exemption notification for the year 1999-2000 by holding that first clearance of Rs.50 Lakhs attracting nil rate of duty on the ground that such benefit already stands extended to the appellant while adjudicating separate proceedings at Delhi.
6. Detailed submissions stand made by both the sides which we have considered and appreciated . Ld. Advocate, Shri J.P. Kaushik, at the stage, is not pursuing the ground of sub-contractors being the manufacturers. He submits that even if the appellants are considered as the manufacturers of Aluminium doors and window frames, the demand has to be held as barred by limitation inasmuch as the same was raised for the period 1989-99 and for the period 1999-2000 whereas the show cause notice has been issued on 28.6.2011. As such, the major part of the demand would be barred by limitation.
7. We find that admittedly the appellants were undertaking the identical activities at Noida also and no demand stands raised by the excise authorities at Noida till date. This fact itself can be considered to be sufficient for the appellant to entertain a reasonable belief that the activity undertaken by them does not amount to manufacture so as to attract duty of excise. We note that the appellant has no regular factory and the fabrication activities were being done at site of the customers, thus, leading to a bonafide belief on the part of the assessee as regards non-excisability of the product. Revenue has not produced on record any positive evidence reflecting upon the malafide of the assessee. There is no mis-statement or suppression of facts on the part of the assessee with intent to evade payment of duty. As such, we agree that the ld. Advocate that the demand beyond the period of limitation would not be sustainable.
8. For the demand within the period of limitation, ld. Advocate has not challenged the same on merits. However, he submits that the total value of clearances taken by the Revenue for confirmation of demand includes the value of Aluminium curtain walls erected by the appellant at the customerss premises. Such fabrication of Aluminium curtain walls has been held to be a non-manufacturing activity by the Commissioner (Appeals) while dealing with their appeal in Delhi. Vide his order-in-appeal dated 10.1.2009 he has held that such erection of Aluminium curtain walls would not amount to manufacture so as to attract the excise duty. The said order stands accepted by the revenue. As such, the value of curtain walls have to be excluded.
9. As regards the Revenues appeal, he submits that the benefit of exempted clearance of Rs.50 lakhs in terms of the small scale exemption was given to them by the adjudicating authority in respect of their Delhi activities. However, the said activities having been held to be non-manufacturing, the benefit of clearance of Rs.50 lakhs stands no longer extended to them thus, making the Revenues appeal infructuous.
10. We having held that the appellant have not contested the issue on the point of manufacture and having held that the benefit of limitation has to be extended to them, are of the view that the matter needs to go back for re-quantification of the demand. Such re-quantification would be done, after excluding the value of Aluminium curtain walls as also after considering the fact that the benefit of initial clearance of Rs.50 Lakhs having been not extended to the assessee in respect of their Delhi activities on account of non-manufacturing of curtain walls, the same has to be extended.
11. Both the appeals are disposed of in the above terms.
( Archana Wadhwa ) Member (Judicial) ( Rakesh Kumar ) Member (Technical) Ckp.
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