2017 (2) TMI 885

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....the appellant has been sustained. 2. Briefly the facts are as under: i. The appellant had filed a refund claim for Rs. 62,52,413/representing the duty of excise paid by the appellant, BSNL, on the value which was calculated at the rate of 10% of the cost of production of Tower Components manufactured and cleared by them during December, 2005 to April, 2007 in favour of their own organization situated at different stations. As per the show cause notice dated 11.09.2007, the Appellant had contended that they had paid duty of excise as directed by Central Excise Anti authorities (who visited their plant) on cost of production of the subject goods + 10 percent of such cost under the provisions of Central Excise Valuation (Determination of....

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....e which was calculated at the rate of 15%or 10% (as applicable during relevant time) of the cost of production or manufacture of subject goods was not required to be paid by them, and the appellant requested to refund the said Central Excise duty paid in excess by them. In other words the appellant's contentions is that they were required to pay duty on the cost of production or manufacture of subject goods only and that the duty of excise Rs. 64,52,413/- paid by adding 10% or 15% of cost of production or manufacture of subject goods has been paid in excess by them; hence is liable for refund. 3. The Appellant has been represented by the Ld. Advocate, Shri Himanshu Khemuka and the Revenue has been represented by the Ld. AR, Shri Yoge....

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....h activity" forgetting the fact that in the present case Electricity Board itself was carrying on that hob and has not assigned the job to any other person who can gain such profit and no business was carried on by the Electricity Board after manufacturing the poles and selling them out or dealing out with any other person. On the other hand, the poles were used for drawing electricity lines over them for purpose of transmission of electricity. 2. In this view of the matter, we think the order of the Tribunal cannot be sustained. The order made by the Tribunal is, therefore, set aside and the enhancement to the extent of 10 per cent is deleted. 8. By keeping in mind the ratio laid down by the Hon'ble Supreme Court in the case of P....