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2015 (2) TMI 696 - AT - Central ExciseWaiver of pre deposit - Excise duty liability on Fabrication of pipes - Held that:- Appellants have admittedly fabricated the pipes in question. This fact is not being denied by them and it also stands admitted that after the decision of Larger Bench in the case of Mahindra & Mahindra Ltd [2005 (11) TMI 103 - CESTAT, NEW DELHI] the fabrication of iron and steel structural has been held to be a manufacturing activity. However, they have submitted that such manufacturing was taking place out of the 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. 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's sister concern at Vishakhapatnam we are of the view that a prima facie it may not be a case of demand being barred by limitations. - in case the demand is confirmed against them, they would be entitled to the benefit of the Cenvat Credit of duty paid on the steels. Though, such cenvat credit would be available only after verification of the invoices etc. but at this interim stage, we accept the appellant's statement that such credit would be to the tune of around 1.37 crores. We agree that the issue in the present appeal is determination of the appellants central excise duty Liability and not going into the fact of excess or less payment of Service Tax. After taking into account the prima facie merits, limitation and the availability of Cenvat Credit as also the fact that the appellant has not pleaded any financial hardship duly supported by the documentary evidences, we deem it fit to direct the M/s Kaakteeya Fabs Private Ltd. to deposit an amount of ₹ 50 lakhs within as period of 12 weeks from today. Partial stay granted.
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