2019 (5) TMI 1430 - AT - Central Excise

Tribunal rules in favor of appellants on manufacturing issue under Central Excise Act

Secure Mobile India, Sanjay Jain, Laycok Engineers Pvt. Ltd., Sanjay Sathi, Director, Varun Sethi, Director, Rajesh Kapoor, KW Engineering & Sign Pvt. Ltd., Dasmesh Art Ltd., Kultar Singh, Sign At Sote, Vikas Garg, Design Dialogues India Pvt. Ltd., M/s Saksham Signs Pvt. Ltd., Vikas Manchand Director, Deepak Trehan, Director, Fiberfill Engg., AVI Plast, Vikas Sabharwal, Shri Rishab Kishore Versus Commissioner Central Excise Delhi-I, II

Secure Mobile India, Sanjay Jain, Laycok Engineers Pvt. Ltd., Sanjay Sathi, Director, Varun Sethi, Director, Rajesh Kapoor, KW Engineering & Sign Pvt. ... Issues Involved:1. Whether the fabrication and installation of Retail Visual Identity Elements (RVI) amounts to manufacture under Section 2(f) of the Central Excise Act, 1944.2. Whether the appellants can be considered as manufacturers when the actual fabrication was done by job workers.3. Whether the demands are time-barred and if the extended period of limitation is applicable.4. Whether the reliance on statements of witnesses who were not cross-examined is valid.5. Whether the RVI elements are goods subject to excise duty or part of permanent structures at the site.Detailed Analysis:1. Fabrication and Installation of RVI as Manufacture:The Revenue contended that the fabrication and installation of RVI elements at petrol pumps constituted manufacture under Section 2(f) of the Central Excise Act, 1944, and demanded excise duty. The appellants argued that the RVI elements were not manufactured by them but by independent job workers, and the elements were assembled at the site, becoming part of permanent structures. The Tribunal found that the elements were dispatched in component form and assembled at the site, thus not constituting manufacture as per the Central Excise Act.2. Appellants as Manufacturers:The appellants provided evidence that job workers independently fabricated the RVI components, and they issued TDS certificates to these job workers. The Tribunal noted that the appellants did not have manufacturing premises and relied on cross-examination of witnesses, which confirmed that job workers were the actual manufacturers. The Tribunal held that the appellants were suppliers of raw materials, and job workers were the actual manufacturers, aligning with precedents such as Ujagar Prints v. Union of India and others.3. Time-Barred Demands and Extended Period of Limitation:The appellants argued that the demands were time-barred as there was no deliberate concealment of information. They were registered with the service tax department and regularly paid service tax under works contract service. The Tribunal agreed, noting that the appellants' activities were known to the department, and there was no willful suppression or misstatement of facts. Therefore, the extended period of limitation was not applicable.4. Reliance on Witness Statements:The Tribunal found that the Commissioner relied on statements of witnesses who did not appear for cross-examination, violating Section 9D of the Central Excise Act, which mandates examination by the adjudicating authority. Citing cases like Ambica International v. Union of India, the Tribunal held that reliance on such statements without cross-examination was erroneous.5. RVI Elements as Goods or Permanent Structures:The Tribunal examined whether the RVI elements were goods subject to excise duty or became part of permanent structures at the site. The appellants provided an RTI reply from IOCL, clarifying that RVI elements were dispatched as components and assembled at the site, becoming integral parts of the building/fascia. The Tribunal concluded that the RVI elements were not goods but part of permanent structures, thus not subject to excise duty.Conclusion:The Tribunal set aside the impugned orders, holding that the appellants were not manufacturers of the RVI elements, the demands were time-barred, and the reliance on unexamined witness statements was invalid. The appeals were allowed, and penalties were not imposed on the appellants.