TaxTMI 
TaxTMI 
TaxTMI 
2014 (2) TMI 356
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.... waiver of pre-deposit?" 3. By consent and on the request of both the counsel for the parties this appeal is taken up for final hearing. 4. The Appellants are engaged in the work of fabrication and erection of structural glazing. The case of the Appellants is that they purchase on the payment of excise duty, aluminum angles/profiles. The Appellants also purchase against payment of duty, glass and other items such as fasteners and rivets. Aluminum sections purchased by the Appellants are given on a job work basis for the purpose of cutting and/or anodizing. The Appellants cut the sections into various sizes as required for the execution of contracts which are then removed to sites where structural glazing has to be installed. The aluminum sections are subjected to cutting, drilling, punching and bending operations at site by contractors. Glass is purchased from glass manufacturers. The aluminum sections are assembled into a frame and after fixing the glass simultaneously the panels are permanently fixed on to the walls. 5. A notice to show cause was issued by the Additional Commissioner of Central Excise on 23 March, 2009 in respect of the work executed by the Appe....
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....ribunal in Mahindra and Mahindra Limited v. Commissioner of Central Excise, Aurangabad - 2005 (190) E.L.T. 301, the decision of the Tribunal which held the field was Aruna Industries v. Collector - 1986 (25) E.L.T. 580. The judgment in Mahindra and Mahindra was rendered on 18 November, 2005. The reference to a Larger Bench of the Tribunal would in fact indicate that it was only thereafter that the law came to be settled. Hence, there could be no question of suppression on the part of the Appellants particularly in view of the fact that the judgment in Aruna Industries was approved in several judgments of the Division Bench of this Court including in Shapoorji Pallonji and Co. v. Union of India - 2005 (192) E.L.T. 92 (Bom.); (ii) The Bangalore Bench of the Tribunal has rejected the contention of the Appellants on the application of the extended period of limitation under the proviso to Section 11A(1) placing reliance on a judgment of the Supreme Court in Commissioner of Central Excise v. Man Structurals Limited - 2001 (130) E.L.T. 401 (S.C.). The judgment in Man Structurals, it is urged, was a case where the Supreme Court remanded the proceedings back to the Tribunal on....
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....has been made out. 9. At this stage, the evaluation by the Court is confined to the question as to whether a prima facie case for the waiver of pre-deposit was made out. Tariff entry 76.10 reads as follows : "76.10 Aluminium structures (excluding pre-fabricated buildings of Heading No. 94.06) and parts of structures (for example, bridges, and bridge-sections, towers, lattice masts, roofs, roofing frameworks, doors and windows and their frames and thresholds for doors, balustrades, pillars and columns); aluminium plates, rods, profiles, tubes and the like, prepared for use in structures." 10. From the show cause notice dated 23 March, 2009 it emerges that the demand for duty, based on applying the extended period of limitation under the proviso to Section 11A(1) was raised with respect to the total contract value received by the Appellants in the amount of Rs. 2.03 Crores for the years 2003-04 and 2004-05 for carrying out project work at the site of Eskay Resorts India Limited. Paragraph 14A of the notice to show cause notes that certain parts and components are used in the process of manufacturing a curtain wall/glazing system which is erected at site. It is the c....
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....ame principle where a decision of an earlier bench of the Tribunal was questioned before a Larger Bench and the law was settled by a Larger Bench of the Tribunal. The principle underlying these decisions is that when the position in law has been settled only as a result of the decision of the larger bench, it cannot be postulated that there was necessarily a suppression on the part of the assessee merely on the basis that the assessee had not applied for a licence and has not paid the duty. This principle must, in our view, apply to the facts of this case in determining whether a waiver of pre-deposit was warranted. Prior to the decision in Mahindra and Mahindra, the decision in Aruna Industries which held the field since 1986 was in favour of the assessee. A similar view was taken by Division Benches of this Court inter alia in Simplex Concretes Piles (India) Ltd. v. Union of India - 2003 (157) E.L.T. 394 (Bom.) and Shapoorji Pallonji (supra). In Shapoorji and Pallonji the Division Bench in fact referred to an earlier decision in Sunflag Iron and Steel Co. Ltd. v. Additional Collector - 2003 (162) E.L.T. 105 (Bom.) as having approved the view taken by the Tribunal in Aruna Industr....