2006 (6) TMI 369

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....uctural and Marine Contractor in Visakhapatnam Port Trust. The Revenue proceeded against him on the ground that he manufactured Tetrapods and Cement Concret Armoured Units (CCAU) which are excisable and cleared the same to M/s Visakhapatnam Port Trust (hereinafter referred to as VPT) without payment of Central Excise duty. The Adjudicating Authority demanded an amount of Rs. 1,10,75,644/- from the appellant being duty on 11,496 Nos. of CCAU manufactured by him. The adjudicating authority imposed equal penalty under Section 11AC of the Central Excise Act. Interest under Section 11AB was also demanded. Further he imposed a penalty of Rs. 1,00,000/- on M/s VPT under Rule 209A of the Central Excise Rules read with Section 38A of the Central Exc....

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....f facts, wilful mistakes, fraud, etc. (b)     The Hon'ble Apex Court has held that when the earlier proceedings on the same subject matter has already been decided against the party, the question of suppression of facts, willful mistakes, fraud, etc. could not arise. Second show cause notice is untenable and proviso to Section 11A could not be made applicable. He relied on the following case laws :- (i)       ECE Industries Ltd. v. CCE - 2004 (164) E.L.T. 236 (S.C.) (ii)     Hyderabad Polymers (P) Ltd. v. CCE [2004 (166) E.L.T. 151 (S.C.)] (iii)    Nizam Sugar Factory v. CCE [2006 (197) E.L.T. 465 (S.C.)] (c)     The Depar....

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....ified the expression "site" as one should not be given restrictive meaning but would include any premises made available to a manufacturer of goods falling under CETH 68.07 as long as the goods in question are solely used in the construction work only. (f)      It is admitted facts in the present case, CCA units were made at site allotted by M/s VPT and it is not a case of Revenue that CCA units were not used in the breakwaters. Therefore the above said Board's Circular is clearly applicable and binding on the Revenue as held by the Constitution Bench of 5 judges of the Apex Court in the case of CCE v. Dhiren Chemicals Industries [2002 (139) E.L.T. 3 (S.C.)]. (g)     The penalty imposed is ....