Dapson Errectors Pvt. Ltd vs Commissioner Of Central Excise, ...

[Arising out of Order-In-Appeal No. 124/2009 dated 13/04/2009 passed by the Commissioner of Central Excise, Mangalore]

For approval and signature:

HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes

Dapson Errectors Pvt. Ltd. No. 32B, Industrial Subrub, II Stage, Mysore  570 008 Appellant(s)

Versus Commissioner of Central Excise, Customs and Service Tax, Mysore S1-S2, Vinaya Marga, Siddhartha Nagar, Mysore  570 011 Karnataka Respondent(s)

Appearance:

None For the Appellant

Mr. Pakshi Rajan, AR For the Respondent

Date of Hearing: 03/02/2015 Date of Decision: 03/02/2015 CORAM:

HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER

Final Order No. 20224 / 2015

Per: ARCHANA WADHWA

Nobody appeared for the appellants. Accordingly I have heard learned DR and have gone through the impugned order.

2. As per facts available in the file, the appellants manufactured and erected boilers/structures for their customers and cleared the goods on payment of duty. Subsequently they were directed to carry out certain modifications at site for which process they were given an additional amount of Rs. 5.50 lakhs (Rupees Five Lakhs and Fifty Thousand only) which was reflected in their Balance Sheet for the year 2004-05.

3. The appellants were issued a show-cause notice dated 07.08.2007 raising a demand of duty of Rs. 52,800/- (Rupees Fifty Two Thousand Eight Hundred only) on the ground that this extra amount received by them was an extra consideration for the goods so supplied by them to their customers, which are required to be added in the assessable value of the goods. The said show-cause notice was confirmed by the original adjudicating authority as also upheld by the Commissioner (Appeals).

4. I find that the duty of excise to the extent of Rs. 52,800/- (Rupees Fifty Two Thousand Eight Hundred only) stands confirmed by the lower authority, in respect of the amount collected by the appellants subsequently to the clearance of the goods and for carrying out certain fabrication/modification in the goods, at the customers site. It is well settled law that the goods have to be assessed at the time of clearance from the factory gate. Any subsequent modifications, which does not amount to manufacture and the consideration received for the same would not relate back to the assessable value of the goods adopted at the time of clearance of the same. As such there is no justification for confirmation of duty of Rs. 52,800/- (Rupees Fifty Two Thousand Eight Hundred only).

5. Apart from merits of the case I also find that the extra amount received by the appellant was duly reflected in their Balance Sheet for the year 2004-05. Such reflection in the Balance Sheet would reveal the bona fides of the appellant, thus not permitting the Revenue to invoke the extended period of limitation. The show-cause notice having been issued on 07.08.2007 is thus clearly barred by limitation.

6. On both the above counts I set aside the impugned order and allow the appeal with consequential relief to the appellant.

(Order pronounced and dictated in open court)

(ARCHANA WADHWA) JUDICIAL MEMBER

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