C.C.E. Delhi-I vs M/S. Alkarma

[Arising out of Order-in-Appeal No. 30/Delhi/I/2007 dated 08.07.2007 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Delhi].

For approval and signature:

Honble Shri Ashok Jindal, Member (Judicial)

Hon'ble Shri B. Ravichandran, Member (Technical)

1 Whether Press Reporters may be allowed to see 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 of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

C.C.E. Delhi-I .Appellants

Vs.

M/s. Alkarma .Respondent

.

Appearance:

Shri M.S. Negi, DR for the Appellant

Shri P.K. Rai, Advocate for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Hon'ble Shri B. Ravichandran, Member (Technical)

Date of Hearing: 05.08.2015

FINAL ORDER NO. 52484-52485/2015-EX(DB)

Per Ashok Jindal:

The Revenue is in appeal against the impugned orders.

2. The facts of the case are that the respondent is engaged in various contracts of erection commissioning and installation of curtain walls doors, windows, etc. The respondent were registered with the Central Excise Department since 1997. On realization that they are not required to pay duty they intimated to the Department that their activity does not amount to manufacture. Therefore, they are not required to pay duty on their activity. On this basis, an investigation was conducted by the Revenue and it was found that Respondent are doing the work of fabrication at the sites, and their activity amounts to manufacture. Whatever, duty they have paid initially is not the correct duty. In fact, they have to make value addition of the activity taken at site is to be included in assessable value. In these set of facts 9 periodical show cause notices were issued to the respondent and demand on duty was confirmed by way of adjudication orders. The said order was challenged by the respondent before this Tribunal and this Tribunal Vide Order reported in 2006 (199) ELT 472 (Tri-Del) has remanded matter back to the Adjudicating Authority to examine the issue of excisability as claimed by the respondent for the normal period and the demands for the extended period of limitation were dropped. In de-novo proceedings the lower authorities examined the issue of excisability of their activity as they claimed vide letter dated 12.01.2000. The lower authorities held that activity undertaken by the respondent does not amount to manufacture. Aggrieved from the said order, Revenue is before us.

3. Heard the parties.

4. The Ld. Counsel for the respondent submits that out of 9 show cause notices in two show cause notices they preferred an appeal before this Tribunal and this Tribunal vide order which is reported in 2007 (216) ELT 649 (Tri) set aside the order of the lower authorities holding that activity undertaken by the respondent does not amount to manufacture. The said matter was taken over by the Revenue before the Honble Apex Court by way of civil appeal and the civil appeal was dismissed by the Honble Apex Court reported in 2010 (254) ELT A45 (SC).

5. Considering the facts that as the issue has already been decided by the Honble Apex Court that the activity of the respondent does not amount to manufacture, therefore, we do not find any infirmity with the impugned orders.

6. In this view, we affirm the impugned orders and dismiss the appeals filed by the Revenue.

0

(Dictated and pronounced in the open court)

(B. Ravichandran) (Ashok Jindal) Member (Technical) Member (Judicial)

Bhanu

3

E/2458 & 2523/2004-EX(DB)