TMI Blog2015 (2) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... t be held to be manufacturer. We do not find any prima facie merits in the above contention of the appellant. It is well settled law that the one who manufactures is the manufacturer. Such manufacture may be out of the raw materials supplied by others and by using the machines and capital goods given by the principal manufacturers. As such, at this prima facie stage, we are of the view that the appellant have manufactured the pipes in question. Entire demand is not barred by limitation and the said question, being a mixed question of fact, can only be entertained at the disposal of the final appeal. Inasmuch as In the present case, by taking note of the contentions of both the sides including the fact of payment of duty by the appellant& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e which he has confirmed the demand of duty of ₹ 1,91,61,777/- against M/s Kaakateeya Fabric Pvt. Ltd along with imposition of penalty of identical amount. In addition penalty of ₹ 30 lakhs stand imposed upon M/s Simplex Infrasturcture Ltd. 2. After hearing both the sides duly represented by Shri Tushar Jarwal Ms. Kanupriya Advocate for the Appellants Shri Ranjan Khanna, DR for the Respondent, we find that M/s Simplex Infrastructure Ltd. entered into a contract with M/s NTPC as a turn-key contract. A part of the said works contract required M/s Simplex Infrastructure Ltd. to lay down the pipes. The said activity of laying down the pipes was further sub-contracted by M/s Simplex Infrastructure Ltd. to M/s Kaakateeya Fabs pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertaining a bonafide belief that as they have discharged their Service tax liability on the entire contract, there would not be any liability to pay excise duty. As such, he submits that a part of the demand would be barred by limitation. He also submits that in case they are held liable to pay duty of excise, they would be entitled to the Cenvat Credit of duty paid on the steel items received by them from M/s Simplex Infrastructure Ltd., which credit would be around ₹ 1.37 crores. As such he prays for grant of unconditional stay. 5. Countering the argument, Ld. DR Shri Ranjan Khanna submits that the appellants were well aware of their liability to pay excise duty on the pipes inasmuch as their own concern located at Vishakhapatnam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e material supplied by M/s Simplex Infrastructure and as such appellants cannot be held to be manufacturer. We do not find any prima facie merits in the above contention of the appellant. It is well settled law that the one who manufactures is the manufacturer. Such manufacture may be out of the raw materials supplied by others and by using the machines and capital goods given by the principal manufacturers. As such, at this prima facie stage, we are of the view that the appellant have manufactured the pipes in question. 7. As regards limitations, we find that the entire demand is not barred by limitation and the said question, being a mixed question of fact, can only be entertained at the disposal of the final appeal. Inasmuch as In the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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