TMI Blog2011 (1) TMI 1421X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Excise Tariff, 1985. The case of the Revenue is that the appellants manufactured the excisable goods and cleared the goods even beyond the exemption limit provided under the small scale exemption Notification without payment of duty. In this regard, a demand of ₹ 4,50,377.00 is confirmed. A demand of ₹ 92,364.00 is confirmed in respect of the goods which are got manufactured on job work basis and as per the Revenue, the supplier of raw materials has not been followed the procedure. Therefore, the appellants are liable to pay duty being manufacturer. A demand of ₹ 59,61,040.00 is confirmed after clubbing the clearance of M/s Kwik Stage and M/s Diomond Machinery on the ground that the present appellants manufactur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not amount to manufacture. The Revenue challenged the decision and the Hon'ble Supreme Court remanded the matter to the Tribunal to re-decide the issue in the case of Collector of Central Excise, Jaipur vs. Man Structural Ltd. reported in 2001 (130) ELT 401 (SC). In pursuance to the remand order passed by the Hon'ble High Court, the Larger Bench of the Tribunal in the case of Mahindra and Mahindra Ltd. vs. CCEx., Aurangabad, Chandigarh, Kanpur and Chennai reported in 2005 (190) ELT 301 (Tri.-LB), held that the processes of cutting, welding etc. were undertaken to bring them into a particular commercially known shapes and assemble them for that purpose as per the designs and having fabricated them, to use them for permanently f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances made by M/s Kwik Stage and M/s Diomond Machinery, were clubbed with the clearance made by the appellants without issuing any show-cause notice to M/s Kwik Stage and M/s Diomond Machinery. As these assessees were not asked to show-cause why their clearance should not be clubbed with the clearance made by the appellants, therefore, the clubbing of clearance of the units which is not party to the proceeding, is also not sustainable. 7. The Revenue submitted that the Larger Bench of the Tribunal in the case of Mahindra and Mahindra Ltd. (cited supra) held that the process undertaken by the appellants amounts to manufacture as the raw materials acquired a distinct shape to suit the structural design. The contention is that as per sub-he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arlier decisions held that the processes in dispute amount to manufacture. 9. We find that the Hon'ble Supreme Court in the case of Padmini Products vs. Collector of Central Excise reported in 1989 (43) ELT 195 (SC), held that mere failure or negligence on the part of the manufacturer to take out licence or pay duty when there was scope for doubt as to whether the licence was required to be taken out of there was a scope of doubt where the goods are dutiable or not, would not attract Section 11A of the Act. Further, we find that the Hon'ble Supreme Court in the case of Cosmic Dye Chemical vs. Collector of Central Excise, Bombay reported in 1995 (75) ELT 721 (SC) held as under: 5. The main limb of Section 11A provides limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise, Madras reported in 1994 (74) ELT 9 (S.C.) while interpreting the provisions of Section 11A of the Act held as under: A bare reading of the proviso indicates that it is in nature of an exception to the principal clause. Therefore, its exercise is hedged on one hand with existence of such situations as have been visualized by the proviso by using such strong expression as fraud, collusion etc. and on the other hand it should have been with intention to evade payment of duty. Both must concur to enable the Excise Officer to proceed under this provisio and invoke the exceptional power. Since the proviso extends the period of limitation from six months to five year, it has to be construed strictly. The initial burden is on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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