2006 (4) TMI 276

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....ents required for the construction are prepared in the appellant's factory. 2. The appellant took central excise registration for the factory and cleared the elements after payment of central excise duty. The goods were described in the clearance documents as aluminium doors, windows, frame work and multiple aluminium sheets etc. The items cleared from the factory were moved to work sites and utilised there along with other items for erecting curtain walls and other structures. These duty paid clearances went on from 1997-98 to 2000. 3. On 12th January 2000, the appellant addressed a letter to the jurisdictional Deputy Commissioner pointing out that it has been advised that its activity is not excisable and no duty was requi....

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.... 1999-00 203565540 113464983 90100557 16 14416089 4 2000-01 148484000 107614057 40869943 16 6539191 5 2001-02 137255272 80883422 56371850 16 9019496   Total         455489 MONTH Clearance as per Balance Sheet Clearance as per RT-12 Returns Diff. Rate of duty % Duty on differential value (Rs.) 1 2 3 4(2-3) 5 6 May 02 6566137.69 5162004.00 1404133.69 16% 224661.39 June 02 4748421.00 3918179.00 830242.00 16% 132838.72 July 02 8323401.77 5456587.00 2866814.77 16% 458690.36 Aug. 02 8074879.27 6270731.00 1804148.27 16% 288663.72 Sep. 02 ....

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.... 6. Learned counsel has also brought out that appellant had explained in detail before the Commissioner that the civil constructions in question involved design, supervision and technological support. It is, therefore, the learned counsel's submission that appellant was right in discharging duty only on the items prepared in the appellant's factory. The Cost Accountant's certificate was also submitted to the departmental authority certifying that the cost of construction at site was in the range of about 50% of the total project contract (Rs. 4,78,20,998 for the year 1997-98 and Rs. 14,84,84,000 for the year 2000-01). Despite the legal and factual explanation, the Commissioner has taken total annual receipts of the appellant as state....

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....onstituting the cost of goods manufactured in the factory. The appellant's contention that a big part of the cost relates to activities at construction sites are also right inasmuch as these projects involved sophisticated design, control and supervision in addition to cost of materials. The costing produced by the appellant before the authorities showed that about half the costs related to items other than elements prepared in the factory. 9. It is clear from the above, that the method of assessment and valuation carried out in the impugned order is not sustainable on the facts of the case or in law. 10. The demands have been raised by invoking the extended period allowed under proviso to Section 11A of the Central Excise A....