TaxTMI 
TaxTMI 
2019 (5) TMI 1430
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....r the respondent ORDER Per Bijay Kumar: 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 Sabhar....
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.... process of making of these units are as under; (a) The various components were dispatched on the site as per requirements of that particular site/petrol pumps. Thereafter, these 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 Aluminu....
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....slided into it after punching & routing, poly carbonate sheet was fixed in the routing and punching area, CFL Lamps was used for illumination. At site, excavation was done and RCC foundation was made. The direction 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 amou....
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....fication was done at the supplier end. There is proof that the elements of the RVI were not inspected at the Appellants premises but at the premises of job-workers. This was confirmed during the cross-examination of one of officers of the 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....
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....n 2013 (288) ELT 161(SC) for their submission. 4.6 That the Appellants were paying service tax under the works contract service @ 2% on the gross value of the contracts. Therefore, the Central Excise Department could not demand Central Excise Duty on the same value and on the same activity. 4.7 That in any event the 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 D....
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....: - (i.) TTG Industries Ltd V CCE Raipur- 2004 4 SCC751 (ii.) Pushpam Pharmaceuticals Co V/S CCE Bombay- 1995(78) ELT 401(SC) (iii.) CCE V/Chemphar Drugs &Liniments - 1989 (40) ELT 276(SC) (iv.) Padmini Products V CCE- 1989 (43) ELT 195(SC) 4.12 Extended period had been invoked in subsequent Show Cause Notices in case of some of the appellants, 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 ma....
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....otices proceeded on the allegations that it is the Appellants who had manufactured the RVI elements. Hence the Commissioner could not travel beyond the scope of the allegations levelled in the show cause notices. In this regard law is well laid down by the Hon'ble Apex Court in various judgments noted in para 4.3 hereinabove wherein it has been held that if the findings are beyond the scope of the allegations set out in the show cause 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....
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.... notice dated 21.4.2011 demanding the service tax for the same period noted in para 4.8 above in case of M/s Fiberfill. These proceedings already stand dropped by the Commissioner vide order dated 11.11.2016 as noted in para 4.8 above. The Commissioner, vide above order, has accepted that the Appellants were providing work contract service to their clients. We hold that once the activities of the Appellants have been held to be falling under the 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....
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....ld Inspector, M/S Bureau Veritas India Ltd and statement dated 26.10.2009 of Sh. Ajay Thakur, Field Inspector M/S SGS India. We have already held that the Commissioner could not have relied upon their statements without producing them for cross examination. In support of their submissions that the RVI elements were cleared from the workshop in component form and fixed at site the Appellant have relied upon RTI reply dated 8.3.2011 received from CPIO, IOCL 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 depr....