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TMI Blog2016 (11) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the order dated 30/09/2009 of Commissioner of Central Excise (Adjudication), New Delhi. Two appeals are by M/s R.D. Plast and Shri R. Daman Singh, Partner of M/s R.D. Plast against demand of Central Excise duty and imposition of equal penalty and imposition of personal penalty respectively. The third appeal is by Shri Anirudh Joshi, Proprietor of M/s Balaji Exports against imposition of penalty under Rule 26 of Central Excise Rules, 2002. Since all these appeals are against the same order, they are taken up together for disposal. The main appellant [M/s R.D. Plast] are engaged in the manufacture of wall mounted, bracket liable to Central Excise duty. They were also trading in aluminium sections, curtains, channels, blends, brackets etc. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... main appellant is liable to Central Excise duty on the aluminium channels, brought from market on which they have carried out process like cutting, drilling and bending as per the requirement of the customers, will amount to manufacture or not. The allegation of the Revenue is that the aluminium channels purchased by the appellants are put to various processes like cutting, drilling and bending and wherever required powder quoting (got done on job work basis), and thereafter alongwith other brought out accessories such as hooks, clamps, curtains etc. supplied to the customers. 4. We have perused the findings of the Original Authority in this regard. The main reason given by the Original Authority to hold the process as manufacture is that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use in the structure are not the same goods as aluminium sections brought in. We note the aluminium section remained as aluminium section as per the Original Authorities own finding. Further, the reliance placed on the decision of the Tribunal in Mahindra and Mahindra reported in 2005 (190) E.L.T. 301 (Tri. LB) is not relevant. The Tribunal was examining the dutiability of various structural items before they are used in the construction process. It was held that the required structural parts are fabricated and before their permanent fixing will be liable to excise duty. In the present case, there is no clear finding regarding what type of structures as parts of such structures are emerging with categorical evidence. In such a situation we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department is entirely based on the allegation that the suppliers do not have manufacturing facility of wall mounted brackets. Hence, it is presumed that trading activity is not bonafide. We also note that the denial of cross-examination of Shri Joshi and Shri Chandra on the ground as they are co-noticee, is also not sustainable. These persons statements have been relied upon and when the appellant wants to verify the truth of the statements then necessarily the procedure as stated out under Section 9D of the Act has to be followed. This has been emphasized in the decision of Hon ble Punjab & Haryana High Court and Hon ble Delhi High Court in various decisions. Reference can be made to Ambika International vs. Union of India and anr. repor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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