2013 (10) TMI 841 - AT - Central Excise

Tribunal Upholds Final Order in Duty Dispute, Rejects Rectification Request

M/s. Alumayer India Pvt. Ltd. Versus CC & CE, Hyderabad-IV

The Tribunal upheld the Final Order, rejecting the appellants' request for rectification of mistake. It affirmed the invocation of the extended period for ... Rectification of Mistake – Held that:- The distinction between unitized structural glazing and semi-unitized structural glazing was brought up before the Tribunal for the first time - Even when this was brought up and even though a claim was made that duty had been paid in the case of unitized structural glazing, there was no opportunity for the Department to examine this claim and its correctness and according to the appellant this had a bearing on the conclusions - In the absence of any verification of the claims, the Tribunal had to necessarily go by the facts available on record and facts available on record clearly showed that appellants had not discharged any duty even though there were tariff entries for structural and the process undertaken by the appellants was not limited to drilling holes and cutting the aluminium sections into sizes. The activity involved is correctly described as semi-unitized glazing system and the Tribunal took note of the fact that the assessee fabricated parts of structures and therefore it cannot be said that the Tribunal did not consider this aspect - there cannot be any basis for a bona fide conclusion on the part of the appellants - even to examine that the decision of the Tribunal was having any mistake, considerable discussion is required – there was no mistake apparent flowing from the order – Application for Rectification of Mistake is rejected – Decided against Assessee. Issues:Rectification of mistake in the Final Order No.198/2011; Correct classification of the activity as semi-unitized glazing system; Liability to excise duty on structural items; Bar on duty demand by limitation; Invocation of extended period; Failure to cooperate with the Department for verification; Consideration of judicial pronouncements in deciding excise duty liability; Rejection of the ROM application.Rectification of Mistake:The appellants sought rectification of a mistake in the Final Order. They argued that the Tribunal erred in concluding that the extended period was rightly invoked and that reliance on certain decisions was improper. The appellants contended that the Tribunal failed to consider that after remand by the Supreme Court, other decisions favored the assessee. The Tribunal's detailed analysis of various decisions and disputes was deemed necessary for assessing the invocation of the extended period.Classification of Activity and Excise Duty Liability:The appellants claimed that the glazing system they erected was not a marketable product and did not involve the creation of a new identifiable commodity. They argued that duty demand was based on the entire glazing system as part of immovable property, not on individual items. The appellants emphasized that no evidence was presented to show that they manufactured the items demanded duty on before erection.Limitation and Judicial Pronouncements:The appellants contended that the duty demand was barred by limitation due to prior decisions and conflicting views in the courts. They highlighted that even after the decision in Mahindra & Mahindra, there were judgments in favor of the assessees. They argued that when different views exist, a longer period of limitation should not be invoked against them.Invocation of Extended Period:The Tribunal considered whether the extended period was rightly invoked. The AR argued that the invocation of the extended period involved a mixture of facts and law, emphasizing the need to analyze correct facts and apply the law. The Tribunal concluded that the appellants could not have entertained a bona fide belief based on the facts and decisions existing during the relevant time.Failure to Cooperate and Rejection of ROM Application:The Tribunal noted the appellants' failure to cooperate with the Department for verification, impacting the adjudication process. The Tribunal's detailed order addressed each submission, including the distinction between unitized and semi-unitized glazing systems. It emphasized the importance of cooperation and verification in resolving issues. Ultimately, the Tribunal rejected the ROM application, finding no apparent mistake in the order and highlighting the need for a considerable discussion to challenge the decision.This comprehensive analysis of the judgment highlights the key issues addressed, arguments presented by the parties, and the Tribunal's reasoning in rejecting the ROM application.