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2023 (7) TMI 473 - AT - Central ExciseClandestine manufacture and removal - There was not manufacturing facility at the premises - noticee charged with Central Excise duty solely on the basis of certain declarations/ representations made to its customers and without it being shown that the said noticee is a manufacturer - penalty - HELD THAT:- The show cause notice dated 24.12.2010, which was the first show cause notice in the matter, had been issued by primarily relying on the representations to various power supply corporations by the appellant firm that she was the manufacturer of the goods supplied by her. After referring to the statements given during the course of investigations by the appellant firm’s authorized representative, the said show cause notice had relied on the stipulations and conditions of the tender documents/ contracts - The appellant firm had also clarified that the factory at the Belilious Road premises lacked the infrastructure to manufacture any transmission line accessory or hardware equipment and that there was no testing facility inside the said premises. Surprisingly, in the adjudication order dated 29.02.2012, it had been held that upon investigation by the revenue authorities, manufacturing facility had been found at the Belilious Road premises, which had also been admitted by the noticee no. 2 in his statement dated 21.05.2010 and that no contrary evidence could be adduced by the noticees. Such findings had clearly been rendered in disregard of the inventory dated 08.02.2010 drawn up by the Central Excise officers, which established the point of lack of manufacturing facilities. The appellant firm’s defence was further supported by the Chartered Engineer’s Certificate filed in the subsequent stages. The enquiry and investigations leading up to issuance of the show cause notices dated 24.12.2010 and 24.03.2011, though giving rise to suspicion against the appellant firm, were insufficient to justify the confirmation of demands. Penalty - Notice demanding duty for the period 2005 to 2009-10 was issued on 24.12.2010 - HELD THAT:- Since they have not suppressed any information from the department, Notice cannot be issued by invoking extended period - It is observed that the Appellant has not taken any Central Excise Registration on the ground that the activities undertaken by them did not amount to manufacture. The investigation concluded that the activities amounts to manufacture and demanded duty by invoking extended period - the question of invoking extended period for demanding duty does not arise since the activities undertaken by the Appellant does not amount to manufacture - the question of alleging suppression and invoking extended period does not arise. Accordingly, penalty also not imposable on the Appellant as well as its Authorized Representative Shri Aayush Rungta. Appeal allowed.
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