TMI Blog2006 (3) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... on payment of fine of Rs. 3 lakhs, and imposing penalty equal to duty under Sec. 11AC. 2. We have heard both sides. We find that the girders were cast in separate yards, transported from the casting yards to stacking yards and thereafter shifted to the site at piers and then fixed and launched thereon, although, girders can be cast on site i.e. on the top of the piers themselves. The issue of excisability of this very same item has been considered by the Larger Bench in the case of Asian Techs Ltd. v. CCE, Pune [2005 (189) E.L.T. 420 (Tri-LB)], wherein it has been held that PSC girders manufactured in casting yard and then removed from there for being launched on sub-structure i.e. piers are excisable goods under Heading 68.07 of the Schedule to the CETA, 1985. The excisability of similar item viz. parts of iron/steel structures falling under Heading 73.08 such as Truss has been settled by the decision of the Larger Bench in Mahindra Mahindra Ltd. v. CCE, Aurangabad [2005 (190) E.L.T. 301] holding that these are excisable goods under Heading 73.08. Both decisions followed the Apex Court decision in A.P. State Electricity Board v. Collector [1994 (70) E.L.T. 3 (S.C.)]. In the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lt Act, 1944, other than goods manufactured in a factory, from the whole of the duty of excisable leviable thereon: Provided that nothing contained in this notification shall apply to sandal wood oil. Explanation - In this notification, the expression factory has the meaning assigned to it in clause (m) of Section 2 of the Factories Act, 1948 (63) of 1948). 2. This notification shall come into force with effect from the 1st day of April, 1931. [Notification No. 46/81-C.E., dated 1-3-1981 as amended by Notification No. 92/81-C.E., dated 1-4-1981 and No. 74/83-C.E., dated 1-3-1983.] It is the above exemption notification on the basis of which structural in Aruna Industries and group of other appeals which were fabricated at the site of the construction and not any factory as defined in Section 2(m) of the Factories Act, were found to be not liable to excise duty. The definition of the word factory as given in Section 2(m) of the Factories Act, 1948, is reproduced below :- 2(m) factory means any premises including the precincts thereof- (i) whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereof, wherein or in any part of which excisable goods other than salt are manufactured, or wherein or in any part of which any manufacturing process connected with the production of these goods is being carried on or is ordinarily carried on. 11.5 The decision in Aruna Industries (supra) was in respect of structurals manufactured in open site i.e. otherwise than in a factory as defined in Section 2(m) of the Factories Act, which were exempted from excise duty under the said notification issued in the context of the Tariff Item 68. The First Schedule which contained Tariff 68 was omitted by Section 4 of the Central Excise Tariff Act, 1985. The ratio of the decision in Aruna Industries and all other decisions which have followed it has to be viewed in the background of the exemption notification issued in respect of goods manufactured otherwise than in a factory as defined in Section 2(m) of the Factories Act and the Tariff Item 68 of the First Schedule which was omitted. 11.6 We may now refer to the contention that Aruna Industries has been affirmed by the Supreme Court in Commissioner of Central Excise, Nagpur v. Wainganga Sahakari S. Karkhana Ltd. (supra). The order made b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arises in the context of Heading 73.08 for decision by this Tribunal pursuant to these matters having been remanded by Hon ble Supreme Court after setting aside the decisions earlier given in these appeals in which the ratio of Aruna Industries was followed. 3. The Mahindra Mahindra decision also deals with the issue of marketability in Paragraph 13.1 which is reproduced below :- 13.1 Commodity character in the concept of marketable commodity is transitory relationship between the goods and the buyers. The goods during their passage, sometimes through several hands from the possession of the first into the possession of the last owner, are commodities, but, as soon as they have reached their economic destination in the hands of the ultimate consumer, they obviously cease to be marketable commodities and become consumption goods as opposed to the concept of commodity . Differences in the marketability of commodities is phenomenon of a far reaching practical importance. Marketability of commodities has its own limitations. Marketability of goods is limited with respect to the persons to whom they can be sold. The owner of a commodity does not have the power to sell it to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commodities that must be specially fitted to the need of the consumer to the usable at all, are not saleable in equal degree in the hands of every owner. Thus, the concept of marketability in the context of marketability of parts of steel structures of the above nature falling under Heading 73.08 cannot be viewed through a hawker s eye. Hawking in its traditional sense, where the hawker moves with the goods screaming for the attention of potential customers, cannot be applied to the marketability of such structures or parts of structures, unless the concept of hawking itself is widened to include E-hawing . The customer in the context of such product it the person who places the order for fabrication of such parts of structure to be raised by entrusting the contract to the manufacturer of such structurals or by itself engages workers on job basis to get them manufactured. Such customers provide adequate marketability to the movable structures and parts of structures falling under Heading 73.08 which remain excisable goods until they are permanently fixed to become part of some immovable structure. Therefore, in our opinion all the above items fall under Heading 73.08 are marketabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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