Custom, Excise & Service Tax Tribunal
M/S. Pioneer Profile Industries vs Commissioner Of Central Excise, Pune-I on 19 January, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. IV Appeal No. E/2608/05-Mum [Arising out of Order-in-Appeal No. P-I/193/05 dated 29/03/2005 passed by the Commissioner (Appeals), Central Excise, Pune-I] For approval and signature: Honble Mr. Ramesh Nair, Member (Judicial) Honble Mr. Raju, Member (Technical) =======================================================
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per 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 : seen
of the Order?
4. Whether Order is to be circulated to the Departmental: Yes
authorities?
=======================================================
M/s. Pioneer Profile Industries
:
Appellant
VS
Commissioner of Central Excise, Pune-I
:
Respondent
Appearance
Shri S. Narayanan, Advocate for the Appellant
Shri Ashutosh Nath, Asstt. Commr. (AR) for the Respondent
CORAM:
Honble Mr. Ramesh Nair, Member (Judicial)
Honble Mr. Raju, Member (Technical)
Date of hearing: 19/01/2016
Date of decision: 19/01/2016
ORDER NO.
Per : Ramesh Nair
The appeal is directed against Order-in-Appeal No. P-I/193/05 dated 29/03/2005 passed by the Commissioner (Appeals), Central Excise, Pune-I, wherein upholding the Order-in-Original, the appeal of the appellant was rejected.
2. The issue involved in the present case is whether the activity of profiles cutting from M.S. plates is amount to manufacture of excisable goods.
3. Shri S. Narayanan, Ld. Counsel appearing on behalf of the appellant, fairly conceded on the merit of the duty-ability of the product, however on limitation he submits that extended period of demand could not have been invoked. The issue involved in this case is that whether the activity amount to manufacture or otherwise and this matter was under consideration before various forum. Therefore extended period is not applicable. He also submits that while computing demand benefit of cum-duty price was also not considered. On query of the bench whether these issues were raised before both the authorities, he submits these issues were not raised either before lower authority or first appellate authority. He further submits that being the questions of law, it can be raised any stage including of this Tribunal.
4. On the other hand, Shri Ashutosh Nath, Ld. Asstt. Commissioner (AR) appearing on behalf of the revenue reiterates the findings of the impugned order. He further submits that this is the case of clandestine removal. Therefore, extended period is correctly applicable. He placed reliance on the case of Honble Supreme Court in the matter of Tejas Networks India Ltd. Vs. Commissioner [215 (316) E.L.T. A157 (S.C.)] and also Sanjay Industrial Corporation Vs. CCE [2003 (155) E.L.T. 369].
5. On careful consideration of the submissions made by both the sides, we find that there is no quarrel on the merit of the case that duty on the process carried by the appellant is payable. On limitation and issue of cum-duty price, on perusal of orders of both the lower authorities, we find that these issues were not raised. Since, the issues on limitation and valuation are mixed question of law and fact, it is a fit case for remand to examine the facts that whether any suppression of facts or mis-declaration etc. exist on the part of the appellant or otherwise. On cum-duty price also examination is required. We, therefore, remand the matter to the original authority to decide afresh on the issue of limitation and cum-duty price and to re-quantify the demand accordingly. The penalty also to re-quantified accordingly. Appeal disposed of by way of remand.
(Dictated in court) Raju Member (Technical) Ramesh Nair Member (Judicial) saifi 4 Appeal No. E/2608/05-Mum