Per Archana Wadhwa :

All the three appeals are being decided by a common Order as they are all directed against the same impugned Order of the Commissioner of Central Excise, Calcutta vide which he has confirmed the demand of duty of Rs. 1,18,19,996.00 against the main appellant company, M/s. Inter scape and has also imposed a personal penalty of Rs. 12.00 lakh upon them on the alleged ground that they had manufactured and cleared Furniture Items without payment of Duty of Excise. Apart from that, the Furniture Items which have already been cleared to the premises of M/ s. ITC Ltd. and M/s. ABN AMRO Bank, have been confiscated with an option to them to get the same redeemed on payment of redemption fine.

2. Briefly stated the facts of the case are as under :-

2A (i). The main appellant company, M/s. Inter scape are engaged in the manufacture of various items of Furniture of a type used in offices, hotels, workshops etc. for which purposes, they entered into contracts with M/s. ITC Ltd. and M/s. ABN AMRO Bank. Vide show cause notice dated 6.6.96 issued to the said appellant company along with the other two appellants alleging evasion of duty by M/s. Inter scape on the ground that the various Furniture Items manufactured and removed by them to the premises of M/s. ITC Ltd. and M/s. ABN AMRO Bank, were cleared without payment of duty during the periods -1992-93 to 1995-96. It was alleged in the Notice that the said appellant company, M/s. Inter scape did not obtain any Central Excise Registration or file the Classification List or Price List of the goods and did not follow other statutory procedural requirements of Central Excise law. Accordingly, the Notice proposed to confirm the demand of duty against M/s. Inter scape along with the proposed confiscation of the goods manufactured by them and imposition of penalties.

2A (ii). During the course of adjudication before the Commissioner, the appellant company, M/s. Inter scape took a stand that they were not actually engaged in the manufacture of Furniture, but passed out the work to independent contractors who should be considered as manufacturers. They also submitted that the items manufactured by them were not goods inasmuch as they were not movable and hence marketable. Some of the goods were classifiable under Heading 44.10 instead of 94.02, as proposed in the Notice. They also submitted that the Management/ Professional Fees charged by them from their clients cannot be included in the assessable value of the excisable goods. They also contended that the goods manufactured by them are nothing but handicrafts and as such, exempt from payment of duty by Notification No. 76/86 dated 10.2.86. The demand was also contested to be barred by limitation.

2B. The other appellants also placed their arguments before the adjudicating authority against the proposed penal action under the provisions of Rule 209A or Rule 210 of the Central Excise Rules, 1944 in terms of the show cause notice dated 6.6.96.

On adjudication, the Commissioner passed the impugned Order confirming demands of duties against the main appellant company, M/s. Inter scape and imposing penalty upon it, along with the confiscation of the goods. However, no penalties were imposed upon M/s. ITC Ltd. and M/s. ABN AMRO Bank. They were, however, aggrieved with that portion of the Order vide which, the furniture allegedly cleared by M/s. Inter scape without payment of duty, has been confiscated with an option to redeem the same on payment of Redemption Fine.

The said Order of the Commissioner is impugned before us.

3. Shri Rajeev Wagley, learned Chartered Accountant has appeared for the appellant company, M/s. Inter scape and raised a number of pleas and contentions. We would be discussing the pleas raised by the appellants one by one in the preceding paragraphs:-

3A. It is strongly contended by the learned CA. for appellant company, M/s. Inter scape that they cannot be held to be the manufacturer of the Furniture Items in question