Delhi High Court
M/S Ashbee Systems Pvt. Ltd. vs Commissioner Of Central Excise, ... on 15 March, 2011
Author: Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Writ Petition (Civil) No. 7162/2010
M/s Ashbee Systems Pvt. Ltd. ....Petitioner
Through Mr. Neeraj Kishan Kaul, Sr. Adv.
with Mr. Abdesh Chaudhary, Adv.
VERSUS
Commissioner of Central Excise, Delhi II & Anr. ...Respondents
Through Mr. Satish Kumar, Sr. Standing Counsel
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER
% 15.03.2011
By the impugned order dated 6th December, 2010, The Customs,
Excise and Service Tax Appellate Tribunal (CESTAT) has partly dismissed
the petitioner's application for stay of the order dated 8th September,
2009 passed by the Commissioner, Delhi. The petitioner has been
denied stay of demand of excise duty of Rs.1,71,40,806/-. CESTAT has
granted waiver of the interest thereon and the penalty, including
personal penalty of Rs.4,00,000/- on a Director of the petitioner.
2. It is stated that the petitioner is a small-scale unit engaged in
business of procurement, erection and commissioning of pit and pitless
type of Electronic Weigh Bridge since the year 1984. The contention of
the petitioner is that the said activities do not amount to manufacture
and, therefore, the activity is not taxable under the Central Excise Act,
1944 (Act, for short). The stand of the respondent, on the other hand,
is that the aforesaid activities amount to manufacture.
3. CESTAT in the impugned order has referred to the judgments of
the Supreme Court in Sirpur Paper Mills Ltd. vs. CCE, Hyderabad, 1998
(97) ELT 3 (SC) and Narne Tulaman Manufacturers Pvt. Ltd. vs.
Collector of Central Excise, 1988 (38) ELT 566 (SC). It has held that the
petitioner has not been able to establish a prima facie case and,
therefore, the entire tax amount of Rs.1,71,40,806/- has been directed
to be deposited.
4. During the course of the hearing, learned counsel for the
respondent has also relied upon the judgment of the Supreme Court in
2010 (252) E.L.T. 481 (S.C.), in support of the order and the reasoning
given by the CESTAT.
5. On the other hand, the contention of the petitioner is that in
their own cases, it has been repeatedly held that the petitioner is not
liable to pay excise duty on the activity, which as per the petitioner
amounts to fabrication and commissioning and not manufacture. The
petitioner along with the writ petition has filed copy of these orders
passed by the respondent themselves. The petitioner has also relied
upon the following decisions in support of their contention:
(i) Hindustan Zinc Ltd. vs. CCE, 2005 (181) 170 (S.C.)
(ii) TTG Industries Ltd. vs. CCE, 2004 (167) ELT 501 (S.C.)
(iii) Sharpoorji Pallonji vs. Union of India, 2005(192) ELT 92(Bom)
(iv) CCE Vs. Man Structurals Ltd., 2001(130) ELT 401 (S.C.)
6. Reference is made to the order of the Supreme Court in Auto
Measurematic Ltd. vs. Asstt. Collector of Customs, Excise, Madras,
1997(96) ELT 14 (SC). In the said case while directing the assessee to
approach the Tribunal, it was held that pre deposit would not be
insisted. The petitioner has also relied upon the Board Circular No.
58/1/2002-CX dated 15th January, 2002. Contention on the question of
limitation has also been raised and reference is made to the decisions in
(i) Nizam Sugar Factor vs. CCE, 2006(197) ELT 465(S.C.)
(ii) CCE vs. Chennai Petroleum Corp. Ltd., 2007(211) ELT 193(S.C.)
7. It is noticed that the impugned order passed by the CESTAT does
not notice and take into consideration the contentions raised by the
petitioner including the judgments relied upon by them. The grounds
and reasons given by the petitioner including case law relied upon by
them have not been referred to in the impugned order. Keeping in
view the aforesaid facts, we are inclined to quash the impugned order
and ask the CESTAT to decide the application for stay afresh. The
learned Tribunal will keep in mind the contentions and reasons
including the case law relied upon by the petitioner. It is clarified that
this Court has not expressed any opinion on merits of the controversy
and issue. CESTAT will independently apply its mind.
8. With the aforesaid observations, the writ petition is disposed of.
SANJIV KHANNA, J.
CHIEF JUSTICE
March 15, 2011
kkb
