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M/s Kirat Fabricators Versus CCE & ST, Jammu & Kashmir

2015 (3) TMI 1087 - CESTAT NEW DELHI

Waiver of pre deposit - Area Based Exemption under Notification No. 56/02-CE - either any duty was being paid in respect of the tubular poles nor the exemption under the above-mentioned notification was availed. - Held that:- Appellant did not pay the duty in respect of clearances of poles at the time of commencing commercial production in the year 2009 in view of the Apex courtís judgment in the case of Hindustan Poles Corporation vs. CCE, Kolkata (2006 (3) TMI 2 - SUPREME COURT ) while they in .....

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shall be liable to pay duty in respect of the clearances of tubular poles during the period of dispute. - this is not the case for total waiver. - Partial stay granted. - Excise Stay Application No. 54235 of 2014 in Appeal No. 53783 of 2014 - Stay Order No. 50946/2015 - Dated:- 3-3-2015 - Shri Rakesh Kumar, Member (Technical) And Shri S.K. Mohanty, Member (Judicial) For the Petitioner : Shri Rajesh Gupta, FCA For the Respondent : Shri Ranjan Khanna, Authorized Representative (DR) ORDER Per. Rak .....

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s. While commencing production in the year 2009, the appellant were paying duty only in respect of accessories and were availing the exemption under Notification No. 56/02-CE and neither any duty was being paid in respect of the tubular poles nor the exemption under the above-mentioned notification was availed. The reason for this was that the Apex court in its judgment dated 27/3/06 in the case of Hindustan Poles Corporation vs. CCE, Kolkata reported in 2006 (03) LCX 0008 had held the activity .....

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in 2008 (03) LCX 0013 took a contrary view and held that joining of duty paid pipes of different diameters by welding would amount to manufacture and in this judgment, the Apex court also considered its earlier judgment in the case of Hindustan Poles Corporation vs. CCE, Kolkata (supra). There is no dispute that the manufacturing process undertaken in the present case is same as that in the case of Prachi Industries (supra). However, the Department probably not being aware of the Apex Courts ju .....

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11AB and beside this, the show cause notice also sought imposition of penalty on the appellant under Section 11AC. 1.1 The show cause notice was adjudicated by the Commissioner vide order-in-original dated 04/3/14 by which the Commissioner confirmed the duty demand of ₹ 1,11,74,209/- against the appellant alongwith interest on it under Section 11AB. However, he also allowed the Cenvat credit in respect of the inputs used in the manufacture of steel tubular poles which was to be quantified .....

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ts being manufactured by them including steel tubular poles, but in view of the Apex court s judgment in the case of Hindustan Poles Corporation vs. CCE, Kolkata (supra), the registration certificate was granted only in respect of the accessories and not in respect of tubular poles, that for this reason only, they were making clearances of tubular poles without payment of duty and were not availing exemption under Notification No. 56/02-CE, that the appellant were not ware of the subsequent judg .....

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2/13 that a show cause notice was issued for demand of duty in respect of the clearances of tubular poles during period from January 2012 to November 2012, that if the duty is demanded in respect of the clearances of tubular poles, the appellant would be eligible for Cenvat credit, which in terms of the Commissioners finding in para 25 of the impugned order, would be about ₹ 80,83,283/-, that the balance amount of duty to be paid through PLA would be exempt under Notification No. 56/02-CE .....

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he Commissioner findings in the impugned order and pleaded that the law on the point of dispute in this case stood settled in March 2008 when the Apex Court in the case of Prachi Industries vs. CCE, Chandigarh (supra) held that fabrication of tubular poles by welding the duty paid pipes of different diameters would amount to manufacture, that ignorance of law cannot be treated as an excuse for non-payment of duty, that in the judgment of Prachi Industries vs. CCE, Chandigarh (supra), the Apex co .....

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r favour, and hence, this is not the case for waiver from the requirement of pre-deposit. 5. We have considered the submissions from both the sides and perused the records. 6. The appellant had commenced commercial production of tubular poles and other accessories for electricity poles in 2009. There is no dispute that the goods manufactured by them including tubular poles are recovered for exemption under Notification No. 56/02-CE and their unit is located in the area specified in this notifica .....

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