2009 (9) TMI 326

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..... Accordingly, after dispensing with pre-deposit, we take up the appeals for final disposal. 2. In adjudication of a show-cause notice dated 16-4-2008, the ld. Commissioner confirmed a demand of duty of Rs.88,15,196/- against the main appellant (hereinafter referred to as the assessee) for the period 2002/2007 by invoking the extended period of limitation on the ground of suppression of facts. He also demanded interest on duty under Section 11AB of the Central Excise Act. Penalty equal to duty was imposed on the assessee under Section 11AC of the Act. Separate penalties were imposed under Rule 26 of the Central Excise Rules, 2002 on the other appellants. The demand of duty is on what are called "Chlorination equipment, Evaporators,....

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....facts by the assessee. The associated proposal for levy of penalty under Section 11AC was also raised on the same ground. This demand and other proposals were contested. It was in adjudication of this dispute that the ld. Commissioner passed the impugned order. 3. After hearing both sides, we note that the assessee has been consistently contending that no manufacture was involved in the activity undertaken by them and that what emerged out of such activity was immovable structure which was not exigible to duty of excise. In this connection, they relied upon case law as well as the Board's Circular No. 58/1/2002-CX., dated 15-1-2002 issued under Section 37B of the Central Excise Act. In the said Circular, the CBEC had examined a lin....

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....se lines. There is also a challenge, albeit blurred, against the demand of duty. 4. Having found that the adjudicating authority chose to hold the commodity to be excisable goods without examining the manner in which it had taken shape and come into existence, regardless of the guidelines laid down and illustrations given by the Board in its circular dated 15-1-2002, we are of the considered view that the case should be adjudicated afresh. Where a party claims under a circular of the above kind, the judicial authority has got to examine the question, whether the subject commodity would fit into the parameters of immovable property or qualify to be excisable goods, in terms of the Board's circular coupled with the relevant judicial ....