TaxTMI 
TaxTMI 
2023 (7) TMI 1427
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....ity would amount to manufacture, 03 (three) Show Cause Notices were issued for the period from October, 2003 to October, 2009 and the notices were adjudicated vide Order-in-Original Nos.4 to 6/2010(CEX)(COMMR.) dated 30.09.2010 and 02 (two) notices for the period from November, 2009 to June 2011 were adjudicated vide Order-in-Original Nos.1 to 2/2012(C.EX)(COMMR.) dated 12.01.2012 by Commissioner, Central Excise & Customs, Thiruvananthapuram. Aggrieved by above 5 (five) orders the appellant filed appeals assailing the Order-in-Original Nos.4 to 6/2010(CEX)(COMMR.) dated 30.09.2010(covered under Excise Appeal Nos.335-337 of 2011) and Order-in-Original Nos.1 to 2/2012(C.EX)(COMMR.) dated 12.01.2012 (covered under Excise Appeal Nos.890-891 of 2012). Revenue has filed an appeal against the Order-in-Original Nos.1 to 2/2012(C.EX)(COMMR.) dated 12/01/2012 (covered by Excise Appeal No.759 of 2012) for non-imposition of penalty under Section 11AC of Central Excise Act, 1994 read with Rule 25 of Central Excise Rules, 2002. The details are in the table below:- Appeal No. Order-In-Original No. Show Cause Notice No. Period Involved Duty Involved E/335/2011 4 to 6/2010-(CEX....
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....n filed by the appellant without any objection, they cannot demand Central Excise duty on the very same activity on which the appellant was paying service tax. He further submits that the entire proceedings covered by impugned order was based on the Larger Bench decision of the Hon'ble Tribunal in the case of M/s Mahindra & Mahindra Ltd. Vs C.C.E., Aurangabad, Chandigarh, Kanpur & Chennai reported as 2005 (190) E.L.T. 301 (Tri.-LB). He further submits that subsequent to the decision of Larger Bench referred supra, the Hon'ble High Courts as well as Hon'ble Supreme have upheld the decision of this Hon'ble Tribunal holding cutting, drilling & galvanization of angles & channels does not amount to manufacture as well as the subsequent Larger Bench of the Hon'ble Tribunal has held cutting, drilling and galvanization of angles and channels for use in structures is not excisable to duty. 3. The appellant further submitted that the articles cleared by the appellant are used by KSEB only with RCC/PSC poles and a certificate to that effect is also produced from KSEB. The said facts were also noted by the Adjudication Authority in the impugned orders. Regarding the extended period of limitat....
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....ty and on disposal of the appeal, appeal was filed before this Tribunal also. On disposal of the Department's appeal refund was allowed. Thus respondent accepted that the activity does not amount to manufacture. 6. Learned Counsel draws our attention to various decisions:- (i) CCE., Hyd. Vs. Deepak Galvanising & Engg. Indus. P. Ltd. reported at 2008 (228) ELT 40 (Tri.- Bang.) Upheld by the Hon'ble High Court of AP in Commissioner Vs. Deepak Galvanising & Engg. Indus. P Ltd. 2015 (317) ELT A160(AP) Commissioner Vs. Deepak Galvanising & Engg. Indus2015 (315) ELT A90(AP) (ii) Krishna SaaFabs Pvt. Ltd. Vs. CC & CE., Tirupati 2016 (344) ELT 1114 (Tri-Hyd.) Dept. appeal dismissed by Hon'ble Supreme Court Commissioner Vs. Krishna SaaFabs Ltd.2017 (347) ELT A29 (SC) (iii) Leotronics Scales Pvt. Ltd. Vs. CCE., Jalandhar 2017 (12) TMI 223-CESTAT CHANDIGARH (iv) Tamil Nadu Generation & Distribution Corpn. Ltd. Vs. CCE 2019 (370) ELT 61 (Mad.) (v) CCE., Mumbai Vs. Mccoy Architectural Systems P Ltd. 2019 (3) TMI 1501-CESTAT MUMBAI 7. Learned counsel draws our attention to the Final Order issued in the matter of M/s Madhya Pradesh Power Transmission Co. Ltd. Vs. CCE., r....
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.... Supreme Court in appellant's own case, reference to any other decision by the Tribunal even if it is by a Larger Bench is of noavail." 8. Learned Counsel also draws our attention to the findings in the matter of M/s Krishna Sea Fabs Pvt. Ltd. V/s CC & CE., Tirupati reported at 2016 (344) ELT 1114 (Tri-Hyd.). The Tribunal has held that:- "6. The above judgment is applicable to the case in hand, the issue and facts being similar. We further note that the demand of duty by department relates to period from March, 2004 to June, 2004, whereas, the Chapter Note 5 in Chapter 72 laying down that the process of galvanization to be deemed manufacture for the products of Chapter 72, has been brought into effect w.e.f. 1-3-2011 vide the Union Budget 2011. This being so, the process of galvanizing carried out on the impugned products would not be deemed manufacture during the material period." 9. Learned AR for Revenue submitted that a Chapter Note 4 was introduced in Chapter 73 of Central Excise Tariff Act, 1985 to the effect that process of galvanization amounts to manufacture with effect from 01.03.2002 and thus the activity of the appellant attracted Central Excise Duty from 01.03.....