2011 (3) TMI 1498 - AT - Central Excise

Tribunal Waives Pre-Deposit, Stays Demand Pending Appeal

ALMECH ENTERPRISES Versus COMMISSIONER OF C. EX., MUMBAI-V

The Tribunal granted a waiver of pre-deposit of duty, interest, and penalty, staying the demand during the pendency of the appeal. The Tribunal found that ... Waiver o pre deposit - Cancellation of registration certification - Manufacturing activity or not - Appeal pending for disposal before this Tribunal to determine Whether activity by the applicants amount to manufacture or not - Held that:- As the issue “whether the activity undertaken by the applicants amounts to manufacture or not” is pending before this Tribunal, prima facie, we find that the applicant should not be asked to make any pre-deposit of the demands confirmed. Therefore, we grant waiver of pre-deposit of duty, interest and penalty and stay demand thereof during the pendency of the appeal - Stay granted. Issues involved:1. Whether the activity of job work undertaken by the applicants amounts to manufacture or not.Detailed Analysis:Issue 1: Whether the activity of job work undertaken by the applicants amounts to manufacture or not.The case involved the applicants seeking waiver of pre-deposit of duty demand, interest, and penalty confirmed against them for job work activities carried out at their factory premises. The applicants received duty paid aluminum sections, pipes, and tubes, which were then processed by cutting, fabrication, and anodizing before being affixed into door and window frames at the customer's building. The department contended that these activities amounted to manufacturing, leading to demands being confirmed against the applicants. The applicants, however, argued that their activities did not constitute manufacturing and applied for the cancellation of their registration certificate. The adjudicating authority initially rejected the cancellation, but the Commissioner (Appeals) later allowed it, stating that the activities did not amount to manufacturing. The department appealed this decision before the Tribunal, which was pending for disposal.Upon review, the Tribunal noted that the key issue was whether the activities undertaken by the applicants constituted manufacturing. Referring to a previous order-in-appeal where the Commissioner (Appeals) had ruled in favor of the applicants, the Tribunal observed that the Revenue had challenged this decision before them, and the appeal was still pending. Considering this, the Tribunal found that the matter should have been kept in abeyance until the final decision by the Tribunal. Consequently, the Tribunal granted a waiver of pre-deposit of duty, interest, and penalty, staying the demand during the appeal's pendency. The Tribunal also directed the registry to tag the current appeal with the pending appeal related to the same issue.In conclusion, the Tribunal's judgment focused on determining whether the job work activities undertaken by the applicants constituted manufacturing. The decision to grant a waiver of pre-deposit and stay the demand was based on the pending appeal and the need to await the Tribunal's final decision on whether the activities amounted to manufacture.