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2022 (11) TMI 435 - AT - Central ExciseProcess amounting to manufacture - Green Houses - Revenue was of the view that 'greenhouses' are put up as elements to be assembled on site, and appellant was manufacturer of greenhouses where they supply the raw material and carry out erection/ installation also - classification of goods - demand of Central Excise duty on the manufacture & clearance of their finished goods with effect from 28.02.2005 - Recovery of Central Excise Duty - demand of interest alongwith penalty - extended period of limitation - HELD THAT:- From the perusal of the order of the tribunal in case of JAIN IRRIGATION SYSTEM LTD., SHIV VIJAY SINGHAVI, SHRI DI DESARDA VERSUS COMMISSIONER OF CUSTOMS, NEW DELHI [2018 (11) TMI 897 - CESTAT NEW DELHI], it is evident that the said order has decided the issue of classification of the goods and has not decided the issue in respect of the manufacture. The order is totally silent on this aspect, which goes to the root of the matter i.e. whether the activities undertaken by the appellant would amount to manufacture or not. The issue of manufacture was not even argued before the tribunal in the that case and hence the order to that extent is sub silentio. Appellants have in the present case challenged the demand on the ground that activities undertaken by them do not amount to manufacture. From the perusal of the order of the tribunal in case of Jain Irrigation, it is evident that the said order has decided the issue of classification of the goods and has not decided the issue in respect of the manufacture. The order is totally silent on this aspect, which goes to the root of the matter i.e. whether the activities undertaken by the appellant would amount to manufacture or not. The issue of manufacture was not even argued before the tribunal in the that case and hence the order to that extent is sub silentio. Appellants have in the present case challenged the demand on the ground that activities undertaken by them do not amount to manufacture - the polyhouse/ green house is put up as elements to be assembled at site. It is therefore apparent that the claims of the appellants that they are just purchasing materials and selling the same & that they merely collect bought out duty paid items and supply them is not correct in as much as these goods are thereafter assembled and installed at the customer site by the appellant to bring into existence the “greenhouse”. Commissioner has in para 27 and 28 of his order elaborately referred to the documents and records to arrive at the findings that the goods supplied were essentially complete set of components for erecting and installing the greenhouse. The issue whether the activities undertaken by the appellants do amount to manufacture of Prefabricated building -Green House or not is a question of fact and needs to be ascertained from the facts available on the records. In the paper book filed along with the appeal, appellants have enclosed a number of purchase order and invoices which were in reference to the supply of raw material, and the material. In fact there are no purchase orders/ invoices for the supply of Green House. No clear cut findings have been rendered by any authority on this aspect - Joint commissioner in his order has recorded the factum of issuance of notice demanding service tax and its adjudication. But do not records anything further. All these facts need to be ascertained and final view needs to be taken in the matter for ascertaining whether the activities undertaken by the appellant amounted to manufacture of prefabricated building – green house. The matter needs to be remanded back to the original authority to reconsider the issue of manufacture and for recording the findings - Appeal allowed by way of remand.
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