TaxTMI 
TaxTMI 
TaxTMI 
2020 (7) TMI 317
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....ingly manufactures certain structures and assemblies for erection of the complete canopy at the site of the petrol pump. The canopy which is manufactured by the appellant contains not only the components fabricated at the factory site but certain other bought items also and cleared from the factory in knocked down condition through trucks for further erection, welding and affixing of the same to earth is done at the site. 2. It has been the contention of the Department that the appellant had cleared the canopies in knocked down condition comprising of certain structural parts manufactured at the factory and certain bought out items and the canopies were sent for assembly and erection at the site of the petrol pumps of various oil companies. It has been the contention of the department that all parts of the canopy system presented together at the customers site were integral part of the entire canopy system and together constituted the term "pre-fabricated canopy" supplied by the appellant to their buyers. It has further been added that so called bought out items were not accessories but integral components of the canopy without which the identity of the canopy cannot be acquired a....
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....ed 21/12/2015 April, 2010 to 24th February 2015 4,21,80,793/- 1,86,20,036/- 35,01,685/- 2. 01/PC/CEX/ADJ/BPL-1/2017 dated 31/01/2017 21st Feb, 2015 to 30th Nov 2015 1,28,73,845/- 78,67,799/- --- 3. 12/COMMR/CEX/ADJ/ BPL-1/2018 dated 27/04/2018 1st Dec, 2015 to 31st Oct 2016 2,08,91,880/- 61,12,920/- --- 6. The appellant had come before this Tribunal in the first round of the litigation and the Tribunal by its final order dated 7 May 2018 and final order dated 13 July 2018 remanded the matter for a fresh adjudication. The observations made by the Tribunal in the final orders, are as follows :- Final Order dated 07/05/2018 :- "3. After hearing both the parties and on perusal of record, it appears that up to August 2014, the appellant had paid only the duty on Canopy fabricated but after 1.9.2014, the appellant has claimed exemption. 4. During the course of arguments, the ld. Counsel was unable to tell the reason why the exemption was claimed after 1.9.2014. In these circumstances, we set aside the impugned order and remand the matter to the original authority to decide the issue de novo but by providing the reasonable opportunity to the appel....
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....rtunity of hearing. The learned Counsel for the appellant - assessee undertakes that they will not seek unnecessary adjournment in the matter and cooperate in the adjudication proceedings. Accordingly this appeal is allowed by way of remand." 7. In view of the above directions of this Tribunal, the matter was taken up by the Commissioner for adjudication and vide his order-in-original dated 01/03/2019 decided the matter afresh. The operative portion of the above-mentioned order-in-original is reproduced below :- "A. In respect of the Show cause Notice No. 23/COMMR/CEX/ADJ/BPL-I/2015 dated 28.04.2015 (i) I confirm that the pre-fabricated canopy structural [Tariff Heading 73089010) manufactured in the factory (off site fabrication) are not entitled for exemption provided under Notification No. 8/96-C.E., dated 23-7-1996 to Notification No. 12/2012-C.E., dated 17-3~2012; (ii) I confirm the demand of Central Excise Duty amounting to Rs. 59,33,969/- [Rupees Fifty Nine lakh Thirty Three Thousand Nine Hundred Sixty Nine only) (including Cess) out of total demand of Rs. 6,08,01,009/- for the period April' 2010 to 2041 Feb 2015 as proposed in the notice and is ordered to be reco....
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....cted to pay the same forthwith. (iv) I impose a penalty of Rs. 7O,55,671/- (Rupees Seventy lakh Fifty Five Thousand Six Hundred Seventy One only) on Noticee under Section IIAC of the Act read with Rule 25 of the Central Excise Rules, 2002. The noticee is directed to pay the S8l1'lC forthwith. As per proviso to Section 11 AC (1](a)of Central Excise Act 1944, the noticee is also given an option to avail the opportunity of reduced penalty as under : if duty as determined above and interest payable thereon under section IIAA is paid within 30 days of the date of communication of this order, the amount of penalty shall be equal to 25% of the penalty so imposed shall be payable, provided that such reduced penalty is also paid within 30 days of the date of communication of such order. (v) The demand of Cenvat credit amounting to Rs. 78,67,'799/- (Rs. Seventy Eight Lakhs Sixty Seven Thousand Seven Hundred Ninety Nine only], being unsustainable, is dropped. C. In respect of the Show cause Notice No. 21/commr/CEX/BPL-I/2016 dated 30.12.2016 (i) I confirm that the pre-fabricated canopy structural (Tariff Heading 73089010) manufactured in the factory (off site fabrication) ....
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....al excise duty. The learned Advocate has taken us to the contents of the notification and the clarifications issued by the CBEC on the same and has claimed that as per the clarification issued by the CBEC vide Circular No. 1036/224/2016-CX. dated 06 July 2016, the fabrication work undertaken at the factory premises (away from site) amounts to work done at site which makes them entitled for exemption Notification No. 12/2012 in terms of the conditions of the exemption notification and as per terms of contract entered by them with various oil companies. 10. We have also heard learned Departmental Representative who has vehemently supported the impugned order-in-original. 11. Before proceeding in the matter, it will be relevant to have a glance at the relevant provisions of the notification which have been claimed by the appellant for availing exemption from the central excise duty :- "Notification No. 3/2005-C.E. dated 24/02/2005 64. 7308 All goods fabricated at site of work for use in construction work at such site Nil Notification No. 12/2012-CE dated 17/03/2012 206 7305 or 7308 All goods fabricated at site of work for use in construction work at such site Ni....