TMI Blog2001 (9) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... Gas Commission (ONGC) for setting up a Gas Processing and distribution Complex entered into a contract with the appellants on 4-10-1985 to perform various fabrication works at site which were scheduled to be completed by 16-1-1986; that the work of fabrication and erection was completed by February 1987; that only work like painting, putting of window frames, doors, rolling shutters, etc. was completed on 31-10-1988; that this is evident from their letter dated 1-3-1989 addressed to M/s. ONGC wherein it was mentioned that work relating to Pipe Rack and Pipe Trestles had been completed during May, 1986 to January, 1987; that similarly as per minutes dated 24-1-1987, Compressor House Structural Work was completed by 15-2-1987 and structural ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Co. Pvt. Ltd. v. CCE, Vadodra [1998 (98) E.L.T. 468 (T) = 1998 (74) ECR 262 (T)] has held that "In view of the existence of contrary decisions in the past the plea that the appellant was under a bona fide belief that job charges alone constituted the assessable value is plausible"; that the Tribunal therefore, held the demand to be time barred; that similar views were expressed by the Tribunal in the case of New Polymer Industries v. CCE [1991 (52) E.L.T. 145 (T) = 1990 (30) ECR 77 (T)]. The learned Advocate also relied upon the decision in the case of Pushpam Pharmaceutical Company v. C.C.E., Bombay [1995 (78) E.L.T. 401 (S.C.)] wherein it was held that "the appellant could not be held guilty of suppression when the law was not certain." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be amounting to manufacture and excise duty is payable by them, they will be eligible to avail of Modvat credit of the duty paid on inputs; that the computation of the demand is incorrect as department has taken total quantity of steel issued to them by ONGC. during the relevant period, proceeding on the assumption that the entire steel was used in the manufacture of impugned goods; that no penalty is imposable on them as they had bona fide belief that activity undertaken by them did not amount to manufacture. He also relied upon the decision in the case of Gravure Prints and Converters Pvt. Ltd. v. CCE, Calcutta [1998 (102) E.L.T. 203 (T)] wherein it was held that no penalty is imposable as Tribunal had found there was absence of suppres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the demand of duty is not beyond the period of 5 years as contended by the learned Advocate for the appellants; that as per the completion certificate given by M/s. Engineers India Ltd., actual completion date was 31-10-1988 and as the show cause notice was issued on 7-7-1992, it was within the period of 5 years; that the minutes of the meeting dated 23-1-1987 no where provides that dates mentioned therein were the dates of completion of the work; in fact according to the minutes appellants had confirmed that this was their last and final programme for completing the work and there would be no seepage on the same. She also mentioned that the appellants have not filed any classification list or declaration; that only on the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered the submission of both the sides, we observe that the department had issued the show cause notice on 7-7-1992 demanding Central Excise duty invoking extended period of limitation on the ground that appellants had suppressed the fact of manufacture and clearance from the Department. Appellant on the other hand have claimed that they were under the bona fide belief that the activity undertaken by them by fabrication Column, Trusses, Purlins, Pipe Trestles, etc. did not amount to manufacture and this bona fide belief was entertained by them in view of the decision of the Appellate Tribunal in the case of Aruna Industries. It has also been contended by the appellants that issue about the excisability of the structures was in dispute. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to take out a licence in case where there was scope for doubt as to whether licence was required to be taken out or where there was scope for doubt whether goods were dutiable or not, would not attract Section 11A of the Act." Thus following the judgments of the Supreme Court and the decision of the Tribunal in Newton Engg. Construction Co., we are of the view that the appellants entertained bona fide belief that the fabrication undertaken by them did not amount to manufacture and as such there was no suppression of facts by them and accordingly extended period of limitation is not invokable. Once the extended period for demanding duty is held to be not invokable, the entire demand of duty is hit by time limit specified in Section 11A(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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