TaxTMI 
TaxTMI 
TaxTMI 
2019 (5) TMI 1430
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....mar: 1. All these appeals which have been adjudicated by the different Adjudicating Authority are on the identical issue and hence being disposed of by this common order. The details of these appeals are tabulated herein and for sake of appreciation; S No. Appeal Number/ Appellant name Order-in-Original & Order-in-Appeal Duty imposed Penalty imposed 1. E/54416/2015 Design Dialogues India Pvt. Ltd OIO-30-D-I-2015 dated 31/08/2015 Rs. 5,31,48,777/- Rs. 5,31,48,777/- 2. E/51990/2016 Deepak Trehan Director OIO-30-D-I-2015 dated 31/08/2015 NIL Rs. 50,00,000/- 3. E/51791/2014 Rajesh Kapoor OIA-01-02/CE/D-II/13 Dated 04/01/2013 NIL Rs. 5,00,000 4. E/52592/2016 Fiberfill Engg. & ANR OIO-03-2016-17 dated 31/05/2016 NIL 12,74,48,040/- 5. E/50430/2017 AVI Plast OIO-28-D-I-2015 dated 31/07/2015 Rs. 2,13,37,367/- Rs. 2,13,37,367/- 6. E/51489/2014 Sanjay Sethi OIO-17-2013-2014 dated 02/12/2013 NIL Rs. 20,00,000/- 7. E/52590/2016 Rishab Kishor OIO-03/2016-17 NIL Rs. 50,00,000/- 8. E/50560/2017 Vikas Sabharwal OIO-28-D-I-2015 dated 31/07/2015 NIL Rs. 25,00,000/- 9. E/51103/2015 Dasmesh A....
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....hese were installed on the existing sites building on the top of the petrol pumps. It was not possible/feasible to assemble building fascia at factory or even at ground level on the site. The material was always sent in loose condition. The Cladding: (i.e., covering of any surfaces such as walls, floors, building, column etc. by any foreign material on the pre-existing structure), was carried out mainly with aluminum composite sheets on the pre-existing surfaces of walls, columns, canopies and buildings. In the process, exact sizes were measured, the sheets were cut as per the site specifications, surfaces was leveled with M.S pipes which were welded to the existing surface to even out different levels of variations (i.e., to cover the defects in civil construction), aluminum extrusion was fixed piece by piece of required lengths cutting out the various opening like doors, windows, ventilators, ACs, coolers, water dispensers, power points and lighting fixtures etc., ACM sheet was cut as per the Aluminum extrusion that was secured to the MS or building through bolts. The ACM was installed in equal lengths/panels and depended upon the individual site plans. (b) Monoliths: Monolith ....
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....ion sign was then fixed on RCC foundation, which was then cladded with black granite tiles. (f) Facility Sign: Aluminum, Poly Carbonate and ACM Aluminum Frames were fabricated by job workers, ACM polycarbonate was cut, punched to size assembled and then dispatched to the site by the job worker. (g) Spreaders: They were fixed on canopy column and facilities on the compound walls, Aluminum, Poly Carbonate and ACM Aluminum frames were fabricated through a job worker and ACM and ACM polycarbonate are cut, punched to size as per oil company's designs, assembled and then dispatched to the site by the job worker. 2. Revenue entertained of the view that fabrication and installation of the RVI amounts to manufacture as defined in Section 2(f) of Central Excise Act, 1944 and the Appellants should have paid excise duty on goods so manufactured. Since the appellants were not registered with the excise authorities and did not pay excise duty the Revenue took the amounts realized from the oil companies as reflected in the balance sheets of the appellants and demanded excise duties by the various Show Cause Notice notices for realization of demanding Central Excise duty and also invoking pen....
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....e Inspecting Agency. The Appellants were issuing TDS Certificates to all the job workers. Some of the job workers were even registered with the service tax department, others were registered with the Central Excise Department as well. In support of the submission that when the goods are manufactured by the job workers duty cannot be demanded from the suppliers of the raw material, as in such events job workers are to be treated as actual manufacturers and reliance has been placed on the following judgements: (i.) Ujagar Prints etc v/s Union of India & Others - 1988(38) ELT 535(SC) (ii.) Union of India& Others v/s Cibatul Ltd 1985 (22) ELT 302(SC) (iii.) CCE Baroda v/s MM Khambhatwala- 1996(84) ELT 161(SC) (iv.) Jay Engineering Works Ltd v CCE Calcutta-1985(21) ELT 299(T) which has been upheld by the Supreme Court as reported in 1995(80) ELT A279(SC) (v.) AFL(P) Ltd V CCE Mumbai II- 2013 (285) ELT 211(T) (vi.) Raymond Ltd V CCE Bhopal- 2014(308) ELT 151(T) (vii.) CBEC circular No 56/56/94-CX dated 14.9.1994 4.2 Since the manufacturers were the individual job workers, the officers to investigate and adjudicate the case would be jurisdictional officer of the concerned ....
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.... process undertaken by the job workers did not amount to manufacture as the Service Tax is payable only on the activites which did not amount to manufacture. According to him same activity can't be considered as a manufacturing activity subjected to excise duty and as also considered as service subjected to service tax. In support of this submission reliance has been placed on the judgment of this Tribunal in the case of M/s Jubilant Industries Ltd V CCE Ghaziabad-2013(31) STR 181 (T) wherein the above principle of law has been laid down. 4.8 The service tax was demanded for the same period on the ground that activities of the Appellants were appropriately covered under the taxable service Erection, Commissioning and Installation Service and Industrial Construction Service. These Show Cause Notices have since been adjudicated by the Commissioner of Service Tax Delhi-III Commissionarate vide order-in-originals dated 11.11.2016 wherein the Commissioner has relied upon the law laid down by the Hon'ble Apex Court in the case of M/s Larsen Toubro reported in 2015 (039) STR 913(SC) and accepted that the Appellants had correctly discharged the Service tax under Work Contract Service. The....
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....ts, though everything was in the knowledge of the department and the show cause notices were based entirely on the investigations conducted in respect of earlier Show Cause Notice. Further, there is no discussion in the show cause notices as to how the department has arrived the value or rate of duty for computing the demand. 4.13 That no penalty is imposable either on the main Appellants or their partner. Learned Advocate, therefore, pleaded for allowing both these appeals. 5. The Ld. Authorized Representative has supported the impugned order and made the following submissions: (i.) That no evidence has been provided by the Appellants that their relationship with the job workers was on principal to principal basis. (ii.) That the Appellants had direct supervisory control over the manufacturing of RVI element and hence they have to be treated as manufacturers of the goods. Hence the Central Excise Duty has been rightly demanded from them. (iii.) There was no requirement that to become a manufacturer the party should have a manufacturing unit. (iv.) He relied upon the statements of officials of IOCL & others to bring home the point that RVI elements were fully manufactured....
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....ause notice the same can't be sustained. 8.1 We find that the Commissioner has tried to justify his finding by going beyond the scope of the allegations levelled in the show cause notices on the ground that it was for the Appellants to prove that their relationship with the job workers was on principal to principal basis. It is well settled law that the burden of proof is on the person who alleges it as held by the Hon'ble Apex Court in the case of Uniworth Textiles Ltd V CCE Raipur reported in 2013(288) ELT 161(SC). 9. Next issue to be decided is as to whether the Appellants could be considered as a manufacturer of the goods in terms of Section 2(f) of the Central Excise Act 1944. The Commissioner has treated the Appellants as the manufacturer merely on the ground that the contract of the IOCL for supply of RVIs was with them and not with the job workers. It has been held in the order that Appellants have failed to produce any document from the oil companies to the effect that the manufacturer of RVI's by their job workers was either permitted by the oil companies or was in their knowledge. According to him in terms of the contracts the different elements of RVIs were to be fab....
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....he works contract service under the Finance Act, 1994 and hence central excise duty cannot be demanded or confirmed treating the same activity to be a manufacturing activity, that too for the same period. 11. The next issue which is to be decided is as to whether the Commissioner could rely upon the statements of four witnesses the details of which have been given in para 3.1 above. This Tribunal in remand order dated 11.1.2012 had interalia directed the Commissioner to allow cross examination of the four persons/witnesses. The Commissioner called these four persons for cross examination on 14.3.2016 & 4.4.2016 but none of the witnesses presented themselves for examination/cross examination. The Commissioner has relied upon their statements to come to the conclusions that the RVI items were in fully manufactured condition in the factory of the vendor itself. According to these statements completed RVI elements were transported to the sites and erected/installed with the help of nuts, bolts and screws. Fabrication work involving welding was not permitted at site. 11.1 We hold that in terms of Section 9(D) of the Central Excise Act no reliance can be placed on any statement recorde....
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....CL wherein it which clarified that. a) RVI elements are fabricated at site as specific requirement. After installing the RVI elements they are not dismantled as they become an integral part of the building/fascia. b) RVI elements are dispatched as components from the workshop and these loose components are leveled, spaced, fabricated and installed to construct/ give shapes to the final product at site. c) The final RVI element come into existence at site only. d) RVI elements once installed at the site of petrol pumps are neither dismantled nor re-installed at alternate locations/petrol pumps. These RVI elements are not resold/marketed by IOCL. e) For RVI works, Indian Oil is claiming depreciation as per prevailing income Tax rules. RVI acquires the character of basic assets on which it is installed. In view of the above reply from IOCL, we have no doubt in holding that the RVI elements were dispatched as components from the workshops of the job workers and not in fully manufactured condition, and RVI elements came into existence only as a part of permanent structure at site only. In any event we have already held that the Appellants can't be treated as a manufacturer of....