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TMI Blog2014 (11) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... reversing the Order-in-Original No. 18/03-04(RP), dated 30-6-2003 of the Commissioner of Customs and Central Excise, Visakhapatnam-I Commissionerate. 2. During the period 1999-2000 to 2000-2001 under two work orders dated 22-1-1999 and 29-9-1999 awarded to him by the Visakhapatnam Port Trust (for short "VPT"), the respondent supplied 11,496 nos. of Concrete Armoured Units (for short "the CCA Units"). 3. The Department suspected that the respondent had cleared the same to the VPT without payment of Central Excise duty. On 31-1-2001, a statement was recorded from the respondent under Section 14 of the Act by the Superintendent of Central Excise wherein the respondent stated that he is not the manufacturer of CCA Units; that he is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emsp;A reply dated 10-9-2002 was submitted by the respondent contending that during the period 1987-88, he had executed work awarded by VPT including casting of CCA Units; that the Additional Collector of Central Excise, Guntur had issued a show cause notice demanding duty on the CCA Units; that the case was adjudicated on 23-6-1989 by adjudication Order No. 7/89 confirming the duty liability on VPT and not on the respondent; and that in the subsequent years 1988-89 to 1992-93, the Assistant Commissioner of Central Excise (AE) made queries, called for information on the manufacture of CCA Units and after the respondent submitted the required information, he had dropped further proceedings. He therefore, contended that he was under a bona fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also not liable to pay interest under Section 11AB or penalty under Section 11AC of the Act. 6. By Order-in-Original No. 18/03-04-RP, dated 30-6-2003, the Commissioner of Customs and Central Excise, Visakhapatnam-I Commissionerate rejected the above objections and confirmed the demand of duty of Rs. 1,10,75,644/- under proviso to Section 11A of the Act apart from penalty under Section 11AC, interest under Section 11AB. He held that the terms of the work orders/contracts show that the contract is for fabrication and supply of specified number of CCA Units at the break waters, that the assessee was not engaged on behalf of VPT, that the assessee is the manufacturer who supplied the goods as per the requirement of the VPT. He also held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtment that the units were not used in the break waters. Therefore, assuming without admitting that the respondent was a manufacturer of CCA Units, the Notification No. 5/99-C.E., dated 20-8-1999 entitling a manufacturer of CCA Units for exemption would apply as they are goods manufactured at the site of construction for use in the construction work site (as clarified by the CBEC Circular dated 18-5-1999 holding that the expression "site" should not be given restrictive meaning but would include any premises made available to the manufacturer of CCA Units (falling under CETH 68.07) as long as they are solely used in the construction work only). 9. Challenging the same, the Revenue has filed the present appeal under Section 35G of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elhi in decision reported in 2001 (134) E.L.T. 491. We agree with the Tribunal that even assuming that the respondent is a manufacturer, he should be entitled for exemption under Notifications No. 5/99-C.E., dated 28-2-1999 and Notification No. 6/2000-C.E., dated 1-3-2000 in respect of the CCA Units as they were manufactured at the site of construction for use in construction works at site as clarified by the CBEC Circular dated 18-5-1999. We also hold that where earlier proceedings on the same subject matter have already been decided against a party, there is no question of suppression of facts, wilful mistake, fraud, etc., warranting invocation of the larger period of limitation of five years under proviso to Section 11A(1) of the Act (as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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