TMI Blog2015 (3) TMI 1086X X X X Extracts X X X X X X X X Extracts X X X X ..... -CE for March and April 2006, also demanded Cenvat credit of ₹ 12,14,590/- in respect of inputs. - There is no dispute that the Apex Court in its subsequent judgment dated 28/3/08 in the case of Prachi Industries vs. CCE, Chandigarh (2008 (3) TMI 25 - Supreme court) reversed its earlier ruling in the case of Hindustan Poles Corporation vs. CCE, Kolkata. (supra) and has held that making tubular poles by joining duty paid price of different diameters by welding would amount to manufacture. In this background there would be no justification for imposition of penalty. - It is seen that the bulk of the duty demand of ₹ 61,74,218/- for the period from January 2012 to November 2012 and December 2012 to June 2013 is within normal limita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g pipes one with another of different diameters to obtain a pole of the desired length does not amount to manufacture under Section 2 (f) of the Central Excise Act, 1944. The appellant filed refund claims total ₹ 4,28,959/- for the months of March 2006 and April 2006 before the Jurisdictional Assistant Commissioner. However, the Additional Commissioner vide order-in-original dated 31/3/08, keeping in view the Apex court judgment in the case of Hindustan Poles Corporation vs. CCE, Kolkata (supra) (a) rejected the refund claim totalling ₹ 4,28,959/- ; (b) ordered cancellation of appellants registration ; (c) ordered recovery of the Cenvat credit of ₹ 12,14,590/- alongwith education cess credit of ₹ 24,296/- held to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Department did not take any corrective action for a long time. It is only in the year 2013 that the Department issued two show cause notices show cause notice dated 05/2/13 for demand of duty of ₹ 48,06,722/- in respect of the clearances of tubular poles during period from January 2012 to November 2012 and show cause notice dated 10/9/13 for demand of duty of ₹ 12,87,933/- for the period from December 2012 to June 2013. These show cause notices besides demand of duty sought recovery of interest under Section 11AB and also sought imposition of penalty on the appellant under Section 11AC. When the Additional Commissioner had himself by an order dated 31/3/08 had cancelled the appellant s registration certificate holding that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f steel tubular poles by joining the steel pipes of different diameters, does not amount to manufacture, had even cancelled their registration certificate, that though the Apex court in its judgment dated 28/3/08 in the case of Prachi Industries vs. CCE, Chandigarh (supra) has held that the fabrication of tubular poles by joining duty paid pipes of different diameters by welding would amount to manufacture, the Department for 4 years did not take any action and only in February 2013 and September 2013 two show cause notices were issued for demand of total duty of ₹ 61,74,218/-, that as held by the Joint Commissioner in order-in-original, if duty is demanded on the tubular poles the appellant would be eligible for Cenvat credit of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded Cenvat credit of ₹ 12,14,590/- in respect of inputs. There is no dispute that the Apex Court in its subsequent judgment dated 28/3/08 in the case of Prachi Industries vs. CCE, Chandigarh (supra) reversed its earlier ruling in the case of Hindustan Poles Corporation vs. CCE, Kolkata. (supra) and has held that making tubular poles by joining duty paid price of different diameters by welding would amount to manufacture. In this background there would be no justification for imposition of penalty. 7. It is seen that the bulk of the duty demand of ₹ 61,74,218/- for the period from January 2012 to November 2012 and December 2012 to June 2013 is within normal limitation period. However, as held by Joint Commissioner, the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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