TMI Blog2019 (5) TMI 1430X X X X Extracts X X X X X X X X Extracts X X X X ..... RVIs were manufactured. In reply to the show cause notice the Appellants furnished documents in their support establishing that the entire work of fabrication of RVI elements were got done from the various job workers. The Commissioner in his order has though conceded that the Appellants are liable to pay Central Excise duty even though they did not have any manufacturing premises, as the onus to prove the principal to principal relationship between them and the jobs worker were upon them which have not been fulfilled by them. Scope of SCN - HELD THAT:- We do not find the findings of Commissioner to be legal, as the Commissioner was legally bound to confine his findings with respect to charges levelled in the show cause notices. As we have already noted that in the show cause notices proceeded on the allegations that it is the Appellants who had manufactured the RVI elements. Hence the Commissioner could not travel beyond the scope of the allegations levelled in the show cause notices. Whether the Appellants could be considered as a manufacturer of the goods in terms of Section 2(f) of the Central Excise Act 1944? - HELD THAT:- The Appellants have brought sufficient eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermanent structure at site only. In any event we have already held that the Appellants can t be treated as a manufacturer of RVI elements in terms of section 2(f) of the Act. Extended period of limitation - HELD THAT:- It is not a case where the department could invoke extended period of limitation due to various reasons. Firstly the Appellants were registered with the service tax department in respect of works contract service w.e.f 6.10.2007. Secondly, the Appellants were not having any manufacturing unit but for a few and were getting the components of RVI fabricated on job works basis. Thirdly, we have already held that fully manufactured RVI elements came into existence at site only - All these facts are sufficient to come to a definite conclusion that there is no willful suppression or misstatement of facts by the Appellants. Hence extended period of limitation is not available to the department. The impugned orders are not sustainable and so is the case for imposition of penalties on the appellants - appeal allowed - decided in favor of appellant. - Excise Appeal No. 55699, 55700, 60542, 60613/2013 [DB], E/51487, 51488, 51489, 51791, 51817/2014[DB], E/51103, 51104, 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- ₹ 2,13,37,367/- 6. E/51489/2014 Sanjay Sethi OIO-17-2013-2014 dated 02/12/2013 NIL ₹ 20,00,000/- 7. E/52590/2016 Rishab Kishor OIO-03/2016-17 NIL ₹ 50,00,000/- 8. E/50560/2017 Vikas Sabharwal OIO-28-D-I-2015 dated 31/07/2015 NIL ₹ 25,00,000/- 9. E/51103/2015 Dasmesh Art Ltd OIO-36-D-I-2014 dated 30/12/2014 ₹ 1,08,76,009/- ₹ 1,08,76,099/- 10. E/51104/2015 Kultar Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E/51711/2015 Vikas Garg OIO-V-94-15-CE-ADJ-D-I-27-2012-120 dated 30/01/2015 NIL ₹ 7,50,000/- 20. E/51488/2014 Varun Sethi OIO-17-2013-2014 dated 02/12/2013 NIL ₹ 20,00,000/- 21. E/51487/2014 Laycock Engg. Pvt. Ltd. OIO-17-2013-2014 Dated 02/12/2013 ₹ 12,633,263/- ₹ 12,633,263/- The appellants were awarded contracts by Petroleum companies such as M/s Indian Oil Corporation, M/s Bharat Petroleum Corporation, M/s IBP Co. Ltd for manufacture and installation of Retail Visual Identity Elements (RVI for short) at the petrol pumps different companies. Broadly, RVI are those signs which display the name of different petroleum companies the unique look, common to all pumps dispensing products of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and installed on the specifically constructed foundation built by Oil company for the same. At the site the components of monoliths were assembled piece by piece and the structure was erected and panels were cladded. (c) Building Fascia : Building Fascia is the ACM cladding done on top of sales building of a Petrol Pump. Aluminum Composite Panels (ACM) sheets and Aluminum Angle/Extrusion length were dispatched on site. Then they were cut to size and the facie was fabricated at site thereafter. (d) Canopy Fascia : This cladding is a work on existing canopies of the Oil Companies as per their colour scheme and design provided by the oil companies for aesthetic looks. For installation of canopy fascia MS Pipe (Coated) Aluminum extension, ACM sheets, GI sheets were supplied directly at the site, where measurement of canopy with regards to size, string level/straightness, water level was taken and a mean level was worked out so that water does not stop on the canopy. Subsequently, MS Pipes of 900 mm were installed on the canopy piece by piece, on the desired line levels, as worked out earlier (vertically) Aluminum Extrusion was then put/installed on the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 3/2011 dated 6.5.2011 whereby he again confirmed the entire duty demand and imposed penalties. The Appellants challenged the said Order-in-Original before this Tribunal and this Tribunal at the stay stage itself set aside the said Order-in-Original and remanded the matter again to the Commissioner/adjudicating authority with certain directions. The Commissioner was directed to allow cross-examination of four persons/witnesses on whose statements reliance was placed in the show cause notices. 3.1 That during the course of remand proceedings cross-examination of Sh. Sanjay Kumar Jain of IOC, Sh Ajay Thakur of SGS, Shri Ashit Gupta of Bureau of Veritas and Sh. S.S. Pandita of IOC was fixed for 14.3.2016 and 4.4.2016. However, none of above witnesses appeared on the said dates. However, the Department offered one Sh. SK Upadhyay for cross-examination on behalf of SGS instead of Sh. Ajay Thakur. Hence the cross examination of Sh. SK Upadhyay was conducted on 14.3.2016 3.2 The Commissioner of Central Excise Delhi-I vide the impugned orders again confirmed the duty demands after giving cum duty benefit raised vide two show cause notices and imposed equal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants premises. Once it is established that the Appellants did not have any manufacturing premises and that the goods have been manufactured at the premises of different job workers, the adjudicating authority could not have gone beyond the SCN to hold that, notwithstanding the facts that the goods were not manufactured at the Appellants premises, they would still be considered as manufacturers. In support of his submission that adjudicating authority can t travel beyond the scope of the show cause notice. Reliance has been placed on the following judgments:- (i.) CC Mumbai v/s Toyo Engineering India Ltd-(2006) 7 SCC 592 (ii.) CCE Cochin v/s Kerala State Bamboo Corpn Ltd-(2005) 13 SCC 396 (iii.) CCE Bhubaneshwar-1 v/s Champdany Industries Ltd-(2009) 9SCC 466 4.4 The photographs of various elements of the RVI would reveal that all of them were assembled at the site and come into existence as parts of permanent structures of the petrol pump (Retail Outlet). The canopy of the petrol pump was never fabricated/erected by the Appellants. These were already available at the site. The Appellants merely had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ish Gupta Field Inspector, Bureau Veritas India Ltd dated 7.10.2008, Shri S.S PanditaSr Manager (Engg), IOCL dated 18.9.2009 and Shri Ajay Thakur Field Inspector SGS India Ltd dated 26.10.2009 as these witnesses did not appear for cross examination and their statements have not been examined under section 9D of the Central Excise Act 1944. In support of this submission reliance was placed on the following judgments:- (i.) Arubica International V/S UOI Others_- 2016 TOIL 1238 (P H) (ii.) Karan Traders v/s Joint Commissioner of CE-2016 (339) ELT 249() (iii.) Kusum Ingots Alloys Ltd V CCE Indore-2015 (317) ELT 721(T) 4.10 The Ld Counsel has placed reliance on RTI reply dated 8.3.2011 received from CPIO, IOCL which clarified that all the elements of the RVI were received in component form and fixed at the site and that the canopy fascia, building fascia, column and building cladding were not illuminated signs. 4.11 The demands are time-barred as there is no evidence of the Appellants deliberately mis-declaring or concealing any information from the department. Since the matter related to dutiability of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... home the point that RVI elements were fully manufactured in the factory of the manufacturer and transported at the Retail outlets for installation. (v.) He relied upon the judgment of this Tribunal in the case of Virgo Industries (Engineers) (P) Ltd V/S CCE reported in 2009(243) ELT 132(T) which has been upheld by the Madras High Court as reported in 2015(320) ELT 695(Mad) which dealt with the identical issue. (vi.) That the duty demands are not barred by limitation on the ground that the appellants suppressed the various facts from the Revenue. 6. A few of the appellants are registered with the Central Excise Department. He, therefore, upholding of the impugned order-in original. 7. We have heard submissions of both the sides and carefully perused the records. 8. We also find the Appellants were issued two show cause notices in which Central Excise duty in which the Appellants were considered as manufacturers of branded goods (RVIs) for M/S IOCL. The first show cause notice was issued under extended period of limitation. Though in various show cause notices the Appellants were considered manufacturers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was either permitted by the oil companies or was in their knowledge. According to him in terms of the contracts the different elements of RVIs were to be fabricated at the vendors premises. He has also not accepted submission of the details of job charges paid by the appellants with TDS deduction. 9.1 We do not agree with the above findings of the Commissioner. The Appellants have brought sufficient evidence on record that the job workers were independently fabricating the various components on RVI elements. The Appellants were issuing TDS certificates to all the job workers. Some of the job workers were even registered with the service tax department. Further, it has also been accepted by the Commissioner that the Appellant were not having manufacturing premises. We also take note of the proceedings of cross examination of Shri S.K Upadhyay of M/S SGS INDIA (P) LTD, who was cross examined by the Appellants. Though the department has relied upon the statement of Shri Ajay Thakur but since Shri Ajay Thakur was not available the Appellants agreed to cross examine Sh. S.K Upadhyay. Sh. S.K Upadhyay stated that they were engaged for third party inspections of the variou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bolts and screws. Fabrication work involving welding was not permitted at site. 11.1 We hold that in terms of Section 9(D) of the Central Excise Act no reliance can be placed on any statement recorded under section 14 of the Central Excise Act unless the witness is examined by the adjudicating authority. It has been laid down in the case of Ambica International v/s Union of India another reported in 2016-T01L-1238(P H) that no reliance can be placed on any statement unless the procedure laid down in section 9D is followed which is of a statutory in nature. 11.2 It is also a well settled law that no reliance can be placed on a statement of a witness when the department was unable to produce them for cross examination as held by M/S Karan Traders V Joint Commissioner of C.E reported in 2016 (339) ELT 249 (Mad). It is also a well settled law that no reliance can be placed on statements of witnesses who when summoned for their cross examinations refuse to turn up as held by Kusum Ingots Alloys Ltd v/s CCE Indore reported in 2015(317) ELT 721(T) various other judgments. In view of the above we are of the view that the Commissioner has erred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave no doubt in holding that the RVI elements were dispatched as components from the workshops of the job workers and not in fully manufactured condition, and RVI elements came into existence only as a part of permanent structure at site only. In any event we have already held that the Appellants can t be treated as a manufacturer of RVI elements in terms of section 2(f) of the Act. 12.1 We further hold that the ratio laid down in Virgo Industries(Engineers) (P) Ltd (supra) has no applicability to the facts of the present case in as much as in this case the complete signages were assembled at Virgo premises. The same were dismantled and packed for convenience of transportation to various petrol pumps of IOCL where they were erected. In the present there is no dispute that the Appellants did not have any manufacturing unit. Further the IOCL in their reply dated 8.3.2011 supra categorically accepted that the RVI elements were dispatched as components from the workshop and final RVI elements came into existence at site only, which were fixed to the earth. 13. The Ld. Counsels have been contended that the extended period of limitation is not applicable to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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