- (1.) This Civil Miscellaneous Appeal, filed by the assessee challenging the Final Order No. 1068/2007, dated 29-8-2007 passed by the Customs, Excise and Service Tax Appellate Tribunal, at Chennai [: 2008 (223) E.L.T. 630 (Tri.-Chen.)] was admitted by this Court on the following substantial questions of law: "1. Whether in the facts and circumstances of the case, the Tribunal is right in holding that the appellant is the manufacturer in the absence of any machineries in the premises? 2. Whether the Tribunal is right in rejecting the applications to raise additional evidence which goes to the root of the matter that there were no machineries available and the fact of manufacture is totally wrong?" The appellant/assessee is engaged in the manufacturing of tools, dies, jigs and fixtures and sheet metal components in the premises at No. 367 Chettipalayam Road, Malumichampatti, Coimbatore 21. They have second premises at No. 368, Chettipalayam Road, Malumichampatti, Coimbatore 21, wherein they have been manufacturing radiators components/sub-assemblies/assemblies for T72 cooling system since 1992. The Department Officials visited the second premises of the appellant factory and found that the existence of the second premises of the appellant and its manufacturing activity had not been intimated to the Department. They also found that the branded radiators of M/s. Universal Radiators Limited were found in packed condition. On enquiry, the representatives of the assessee informed that in respect of the branded radiators of M/s. Universal Radiators Ltd., no accounts have been maintained in the company. A show cause notice dated 20-2-1997 was issued to the assessee as well as to M/s. Universal Radiators Ltd. demanding duty, interest and penalty invoking proviso to Section 11A(1) of the Central Excise Act, 1944 on the ground that the assessee contravened the provisions of Rules 9(1), 51, 52A, 53, 54, 173F, 173G, 174 and 226 of the Central Excise Rules, 1944.
(2.) In response to the show cause notice, the assessee, filed reply stating that show cause notice was issued based on erroneous assumptions that the premises at Part No. 368 Chettipalayam Road is their second premises and they manufactured T 72 Cooling system components there and clear them to M/s. Universal Radiators Ltd. The assessee further stated that they did not have machinery or infrastructure for the manufacture of T 72 cooling systems parts in their alleged second premises. Hence, the assessee stated that in the absence of suppression with intention to evade payment of duty, Section 11AC of the Central Excise Act cannot be made applicable.
(3.) Not satisfied with the reply filed by the assessee, the Adjudicating Authority passed an order confirming the confiscation, duty and penalty in respect of the assessee as well as of the co-noticee.;