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TMI Blog2019 (2) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... y been dictated and he had to file an application for restoration of appeal. That the absence was neither intentional nor deliberate and requested to restore the appeal. 2. The learned Authorised Representative Shri S. Govindaraj appeared on behalf of the department. After hearing both sides and on perusal of records, we find that the learned counsel appeared for the appellant had reached late on 02.08.2018 and, therefore, the appeal happened to be dismissed for default. The counsel has enclosed the air ticket as well as boarding pass to establish that he had travelled on such date to Chennai to attend the hearing of the case. For these reasons, we are of the opinion that the appeal has to be restored to the file of the Tribunal. Hence, the ROA application is allowed. 3. The appeal being of the year 2008 and being one of few old Appeals pending, the same was taken for disposal after hearing both sides. 4. Brief facts are that the appellant is a Unit situated at New Delhi and engaged in manufacturing aluminium doors and windows and Unitized structural Glazing system [USGS] and Aluminium Windows [AW]. It appeared to department that the appellant cleared aluminium frames from their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same was dismissed vide Final order No.52484-52485/2015, dated 05.08.2015 upholding the decision of the adjudicating authority. 6. It is submitted by him that the present show-cause notice covering the period 06.06.2001 to 03.09.2001 for an amount of Rs. 29,21,615/- is identical issue raised in show-cause notice, dated 07.01.2002 issued to the Delhi Unit. Further, that the amount demanded in the present show-cause notice is included in the show- cause notice dated 07.11.2002 issued to the Delhi Unit. This is because the figures for quantifying the demand in the show-cause notice, dated 07.17.2002 has been taken by the department from the balance sheet of the Unit at Delhi and the very same balance sheet is the basis for quantifying the demand in the present show-cause notice also' To support this argument, he relied upon para 4 of the order of the Tribunal, dated 27.04.2006 by which order the matter was earlier remanded with respect to demand for normal period. It is thus argued by him that the demand, therefore, cannot sustain, being duty demanded in both the show cause notices. 7. It is pointed out by learned counsel that the issue in all the similar Show-cause notices have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs Al Karma reported in 2010 (254) E.L.T. A.45 (S.C.). 9. The learned counsel also put forward his arguments on limitation. The show-cause notice, dated 28.07.2005 is issued for the period 06.06.2001 to 03.09.2001. Though, the department alleges that the appellant has suppressed facts with an intent to evade payment of duty, in fact, the litigation started when the appellant had fired a protest letter before the department informing that they were not liable to pay duty. The appellant is a civil contractor and had undertaken composite work contract of paneling and fixing of aluminium doors and windows, curtain wails etc., ail over India paying excise duty on the goods cleared by them from their factory at New Delhi. However, it was informed by their consultant that their activities were not excisable. Though, the appellant made several visits to the Range office at New Delhi seeking clarification, they received no answer. As such, the appellant wrote a letter dated 12.01.2000, wherein, they explained the activities and also supplied the judgments on the issue. There was no response to this letter and the appellant had no choice but to pay excise duty "under protest". In respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the name of ALFL on payment of central Excise duty. Records showed that cut-to-size glass imported by the appellants were supplied to ALFL at the project site for manufacture of USGS and AW. Appellant had procured silicon sealant in two forms - weather sealant etc., and assigned to the project site. The activity undertaken by the appellant showed that the activity amounted to manufacture and, therefore, they are liable to pay excise duty. He relied upon the decision in the case of M/s. Alumayer India Pvt. Ltd., Vs commissioner of Customs & central Excise, Hyderabad-IV reported in 2012 (278) E.L.T. 123 (Tri.-Bang.) and commissioner of central Excise, Chennai Vs M/s. Binny Ltd., reported in 2003 (151) E.L.T.106 (Tri.-Chennai). 11. Heard both sides. 12. According to the department, the appellant is liable to pay duty on UGSG and AW being excisable goods manufactured by the appellant. The department alleges that the appellant has cleared inputs from its factory at Delhi after paying excise duty and had thereafter, manufactured USGS and AW on the second floor of the project site at Chennai and had installed/fixed them on the wails/as a wall at the earmarked place in the immovab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rected is shown in the photograph. curtain wall is mainly used as a facade of the building and as such, the huge object cannot be pre-assembled at any other place and then moved to the site fixing. It has to be carried to the site in the form of pieces of aluminium and cut to required length and fixed piece by piece in the opening of the Structure." 13. Similarly, the adjudicating authority has discussed in detail the construction activity of doors and windows and cladding. In the said decision, it has been categorically herd that the finished product/structure would after construction become an immovable property being attached to earth and, therefore, not being excisable goods cannot be subject to levy of excise duty. The circular No.58/1/2002-Cx., dated 15.01.2002 was also referred by the Commissioner in the said order in para 69. The relevant portion of the circular is reproduced as under:- "If items assembled or erected at site and attached by foundation to earth cannot be dismantled without substantial damage to its components and thus cannot be reassembled, then the items would not be considered as moveable and will, therefore, not be excisable goods. If any goods instal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otices issued against the appellant Unit at Delhi has culminated in setting aside the demand. Though, the learned Authorised Representative has made an effort to argue that the activity that was considered in other show-cause notices and the present show-cause notice is entirely different, after perusal of records and hearing the submissions made by both sides, we are unable to agree with him. The activity is mainly an activity involving making of USGS and AW etc., which have already been considered in the de novo adjudication order, dated 21.12.2006. The demand therein having been set aside has attained finality. The decisions relied by the learned Authorised Representative in M/s. Alumayer India Pvt. Ltd., (supra) and other are distinguishable on facts. In the said case, the issue was with regard to levy of duty on aluminium structural manufactured by the appellant at site. Since the issue stands covered in the appellant's own case, by judicial propriety, we follow the same and hold that the appellant succeeds on merit. 16. The learned counsel has also argued on the ground of limitation. It is brought out from facts that the appellant had issued a letter to the department, dated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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