TMI Blog2014 (2) TMI 356X X X X Extracts X X X X X X X X Extracts X X X X ..... n Structurals found fault with the order of the Tribunal on the ground that the Tribunal had merely proceeded on the basis that structurals are not exigible to excise duty without considering in each case as a matter of fact whether new and identifiable goods which were marketable had come into existence. A prima facie case was made out by the Appellants for the grant of a complete waiver of pre-deposit of duty. We accordingly set aside the impugned order of the Tribunal insofar as it declines to grant a waiver of pre-deposit of duty and direct that the Appellants shall be heard without requiring the Appellants to deposit the duty of Rs. 28,12,634 - Decided in favour of assessee. - Central Excise Appeal (Lodg.) No. 102 of 2011 - - - Dated:- 21-12-2011 - Dr. D.Y. Chandrachud and A.A. Sayed, JJ. Shri V. Sridharan, Senior Advocate with Prakash Shah and Jas Sanghavi i/b PDS Legal, for the Appellant. Shri Jitendra B. Mishra, for the Respondent. JUDGMENT This Appeal is directed against an order of the Customs, Excise and Service Tax Appellate Tribunal dated 15 September, 2011 by which an application for the waiver of a pre-deposit of duty in the amount of Rs. 28,12, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re manufacturing curtain wall/structural glazing. 6. The Additional Commissioner of Central Excise by an order dated 4 June, 2009 confirmed a demand of duty in the amount of Rs. 28.12 lacs and imposed a penalty in the like amount. The Commissioner (Appeals) dismissed the appeal on 17 May, 2010. Before the Tribunal the Appellants applied for a waiver of pre-deposit. The Tribunal has directed the Appellants to deposit the entire amount of duty, subject to which a waiver has been granted in respect of penalty and interest. The Tribunal has by its impugned decision dated 15 September, 2011 noted that it has come to the notice of the Tribunal that in the case of the Appellants a judgment has been rendered on 8 March, 2011 by the Bangalore Bench of the Tribunal in Excise Appeal 186 of 2008 [2012 (278) E.L.T. 123 (Tri. - Bang.)] holding the same goods as excisable. In view of that decision, the Tribunal held that there was no prima facie case for a waiver of duty. As regards the extended period of limitation, the Tribunal observed that the Appellants are not registered with the Revenue authorities and had not informed the department at any point of time regarding their activity. The sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in question are liable to excise duty and on this ground held that the extended period of limitation was attracted. An application has been filed by the Appellants for rectification before the Bangalore Bench of the Tribunal; (iii) Even the decision of the Tribunal in Mahindra and Mahindra provides that structures or parts thereof in Tariff Heading 73.08 in their movable state would be subject to excise duty under Heading 73.08, notwithstanding that they are getting permanently fixed in structures. In the present case, it was submitted that the individual items which are used by the Appellants are duty paid excisable goods but what the department is seeking to subject to tax is the entire contract value in the erection of the glazed curtain wall, something which ex facie cannot be subjected to excise duty. On these grounds, it was urged that the entire basis of the decision of the Tribunal is erroneous and a clear case exists for the grant of a waiver of pre-deposit of duty. 8. On the other hand, counsel appearing for the Revenue submitted that - (i) The Appellants had not obtained registration under the Excise Act and therefore the department was clearly not in knowled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat structurals are not exigible to excise duty, failing to notice that there is a tariff entry which makes structurals exigible. The Supreme Court accordingly set aside the decision of the Tribunal and directed a fresh disposal. Following the decision of the Supreme Court the Tribunal held in certain cases that there was no manufacture of goods involved in making structural components and relied upon its 1986 judgment in Aruna Industries (supra). When a batch of appeals came up before the Tribunal following the decision of the Supreme Court, a Division Bench of the Tribunal referred the issue to a Larger Bench. Finally it was on November 18, 2005 that the Larger Bench in Mahindra and Mahindra resolved the issue by holding that structures or parts thereof mentioned in Heading 73.08 in their movable state will be subject to excise duty notwithstanding the fact that they are permanently fixed in the structures. The Supreme Court has held in several decisions that where a bona fide doubt as to the non-excisability of the goods existed due to a conflict of decisions between different High Courts, the extended period of limitation under Section 11A cannot be applied and the mere failure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the exposition of law by a Larger Bench in Mahindra and Mahindra to understand that the goods were liable to excise duty. Since an application for rectification is pending before the Tribunal in its Bangalore Bench, we are not expressing a final view on the correctness of this line of reasoning. However, we may only observe at this stage that what the Tribunal clearly missed in its Bangalore decision was the fact that the decision of the Supreme Court in Man Structurals found fault with the order of the Tribunal on the ground that the Tribunal had merely proceeded on the basis that structurals are not exigible to excise duty without considering in each case as a matter of fact whether new and identifiable goods which were marketable had come into existence. As a matter of fact, the Supreme Court in Man Structurals remanded all the appeals to the Tribunal for that reason. We would leave this part of the judgment by observing that the view taken by the Bangalore Bench of the Tribunal is with respect inexplicable when it holds that the assessee did not require an exposition of law by the Larger Bench in Mahindra and Mahindra to know as to whether the goods were exigible to excise duty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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