TaxTMI 
TaxTMI 
2013 (9) TMI 578
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....shore. Hyundai was made exclusive sub-contractor for fabrication and installation of Top side (facilities), Helideck etc. of the platform, where Mazagaon Dock Limited was to fabricate jacket (foundation/ lower portion). (ii) Hyundai in turn further subcontracted the work of manufacture of top side facilities to M/s. L&T Limited under a sub-contract agreement dated 15.10.2001. M/s. L&T Limited manufactured the goods under Section 65 of Customs Act, 1962 out of imported raw materials and parts, which were imported by Hyundai by availing the exemption under Notification No. 21/2002-Cus dated 01.3.2002. (iii) M/s. L&T manufactured the goods in bond under Section 65 of Customs Act and cleared the same for home consumption under invoice No.....
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.... case a show cause notice dated 25.10.2002 was issued to L&T Limited proposing to demand customs duty and interest along with proposal to impose penalty on the said goods manufactured by them. Another show cause notice dated 28.2.2003, was also issued jointly to L&T Limited and Hyundai with the similar proposal. The said two show cause notice were adjudicated by the Commissioner, Central Excise & Customs, dropping the demand of customs duty and holding that the goods attract Central Excise duty. The adjudicating authority relied upon the decision in the case of M/s. Favourite Industries vs. CCE, Surat-I (order No. C-II/2019/WZB/2003 dated 25.07.2003 and the Board's Circular No. 618/9/2002-CX dated 13.2.2002. These orders have not been chall....
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....orts and therefore, no duty was payable on its clearance. B. That Excise exemption, under Notification No. 6/2002 dated 01.3.2002 as amended by Notification No. 48/2004 dated 10.9.2004 is attracted in their case. C. That the goods in question are tailor made and not marketable and therefore not excisable. D. That the goods are classifiable under CETH 89.05 which attracts Nil Tariff rate. The appellate Commissioner considering the submissions made on behalf of Hyundai and after perusing the material and evidence on record passed an order No. RKA/563/SRT-I/2008 dated 31.7.2008, holding that ; a. the supply of the HV well platform to Heera field in High Sea cannot be considered as exports. b. the Excise exemption Notification....
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....sed by the respondent before the Commissioner (Appeals); I. that the goods attract customs duty under Customs Act and not the Central Excise duty under Central Excise Act. II. that the exemption under Notification No. 21/2002-Cus) Srl No. 215) is applicable in the case. III. that the goods in their case are classifiable under CETH 89.05. IV. that the goods are not marketable and not excisable. The Commissioner (Appeals) after considering the submissions made and after perusing the material and evidence on record passed order No RKA/150/SRT-1/2011 dated 24.3.2011, holding that; I. the goods attract customs duty under Customs Act and not the Central Excise duty under Central Excise Act. II. the exemption under Notificatio....
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.... though, Hyundai was not a party to one of the show cause notices, they were indeed a party for the other show cause notice and in that case, they did not utilize the opportunity to defend the case and establish the liability of M/s. L & T Limited of Customs duty and the claim for exemption of custom duty before the Commissioner. Even though M/s. L & T Limited had filed the protest apparently on the request from Hyundai, the respondents did not file appeal against the order in original. Even though show cause notice had been issued to them and they had a right to file an appeal nor L & T filed appeal. Under these circumstances, the classification of the goods and liability of the goods to Central Excise duty attained finality on 24.09.2003,....
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....hallenge before the appellate fora. The net result is that Commissioner's (Appeals) decision becomes un-implementable since the adjudicating authority, the Commissioner who passed the order had passed the order within his jurisdiction and that order remains unchallenged. In fact, the refund claim should have been and could have been filed only after the issue of classification and liability to duty had been determined especially in view of the fact that the show cause notice proposing to demand Customs duty was issued on 25.10.2002. It has to be noted that Hyundai preferred refund claims on 05.7.2002 and 21.01.2003 and both of them were rejected on 23.12.2003 by which time show cause notice had already been issued proposing demand of Custom....