TMI Blog2012 (12) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... Though the appellant plead that during the period of dispute they were registered with the central excise authority for payment of service tax, earlier under Heading "installation services" and subsequently under "work contract services", it is not known as to whether their activity of assembly of roller/vertical blinds had been disclosed by them from the central excise authorities. In any case, the question of limitation being a mixed question of law and facts can be examined only at the time of final hearing. Thus this is not a case of granting un-conditional waiver from the provisions of Section 35F and as such, the amount of Rs.15 Lakh paid by the appellant, during investigation, is not sufficient for safeguarding the interests ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he view that the rollers or vertical blinds are chargeable to duty. Since the appellant were not paying any central excise duty, a show cause notice dated 30.10.2009 was issued to them for demand of short paid duty amounting to Rs.59,35,572/- for the period 2005-2006 to 2008-2009 along with interest and also for imposition of penalty on the appellant company as well as on Shri Arun R. Jasuja, General Manager of the appellant company under Rule 26 of the Central Excise Rules. The show cause notice was adjudicated by the Commissioner vide order-in-original dated 30.11.2010 by which the duty demand of Rs.59,35,572/- confirmed against the appellant company under proviso to Section 11A(1) of the Central Excise Act, 1944 along with interest on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... classifiable under sub-heading no.70199000 of the Tariff. The Commissioner by this order confirmed the duty demand of Rs.44,66,863/- along with interest and besides this, while imposed penalty of equal amount on the appellant company under Section 11AC, he imposed penalty of Rs.5 Lakh on Shri Arun Jasuja, General Manager of the appellant company. An amount of Rs.15 Lakhs already deposited by the appellant during investigation was ordered to be appropriated towards this demand. Against this order of the Commissioner, these two appeal along with stay applications have been filed. 2. Heard both the sides in respect of stay applications. 3. Shri B.L. Narsimhan, ld. Counsel for the appellant for the appellant, pleaded that for installation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orks control service, that same activity cannot be treated as service as well as manufacturing, that service tax paid by the appellant during the period of dispute is about Rs.14 Lakhs while during investigation, an amount of Rs.15 lakhs had been paid, that even if the appellant's activity is treated as manufacture and attracting duty, the bulk of the duty demand would be time barred, as when the appellant's activity had been declared to the department and service tax was being collected by treating their activity as service, the appellant cannot be accused of suppressing the relevant facts, that in view of this, that the Tribunal in the case of CCE, Chennai Vs. Architecture Incorporated reported in 2005 (180) ELT 166 has held that doors/wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al blinds chargeable to central excise duty and hence, it cannot be said that they had disclosed all the facts to the department and in view of this, longer limitation period under proviso to Section 11A(1) has been correctly invoked and penalty under Section 11AC had been correctly imposed. She, therefore, pleaded that in the facts and circumstances of the case, this is not the case for waiver from the requirement of pre-deposit. 8. We have carefully considered the submissions from both the sides and perused the records. Prima facie, we find that even in terms of the facts disclosed in the appeal memo of the appellants, the fabric is fixed to the Aluminum tubes in the factory and besides this, in the case of motorized blinds, the motor i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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