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2005 (5) TMI 108 - CESTAT, BANGALOREManufacture of furniture - Excisability of storage cabinets running counters, large reception/conference table and workstation - benefit of Cum-duty price - Demand of duty - Limitation - HELD THAT:- In view of the adjudicating authorities' finding that such workstations cannot be classified under 9304, we hold that the workstations are not excisable. We agree with the finding of the adjudicating authority in para 74 where he has held that partitions are immoveable property permanently fastened to the building and hence not excisable. We agree with the finding the adjudicating authority with regard to partitions. Even though the finding that the flush doors and wooden doors are classifiable under Chapter 44 is correct, the appellant's contention that this finding was beyond the scope of the show cause notice has merits. The show cause notice has classified all the items under Chapter 9304. The adjudicating authority cannot go beyond the scope of the show cause notice. Hence the demand of duty on doors is set aside. The adjudicating authority has rightly held that wall claddir/column cladding, soft board paneling, wall paneling, teak wood shelf, etc. would be immoveable property and do not attract levy of central excise duty. Similarly the following items also would be considered as immoveable property : Skirting, Raceway, Beading, Frame work above false ceiling, mirror panellings, window sil, grooves, patta. In view of this fact the items in question would not cease to be furnitures. Even when an immoveable property is sold, the sale value normally would not include the value of furnitures. The Commissioner's decision to treat the values as cum-duty price is correct in view of the dismissal of department's review petition by Apex Court in Maruti Udyog case [2004 (12) TMI 669 - SC ORDER]. Therefore there is no merit in the departmental appeal. We remand the matter to the adjudicating authorities to recalculate their duty liability in the light of our findings and observations. However, since the appellants failed to obtain Central Excise Registration the invocation of longer period is justified. Demand of interest under 11AB is also upheld. The de novo order should be issued within a period of 3 months. The penalties u/s 11AC on the appellant-company could be limited to 10% after giving them the benefit of SSI exemption. Imposition of penalties under Rule 25/26 or erstwhile 209A and Rule 173Q is justified. However, the adjudicating authority may decide the quantum of penalty after recalculating the duty.
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