TMI Blog2011 (12) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... the material is sold, construction of greenhouse at the site with materials procured by the clients from the suppliers other than the appellant and maintenance of greenhouse - Held that: the appellant is supplying various raw materials for the construction of greenhouse on payment of sales tax. These materials are procured by the appellant from the market and is not manufactured by the appellant - Once the greenhouse comes into existence, it is attached to the earth/foundation and becomes immovable goods and hence it cannot be said that the appellant has manufactured an excisable goods at the site - By merely supplying materials for the greenhouse, there is no evidence on record to show that what has been supplied is a greenhouse - uncondi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... materials supplied by the customers. It was further found that the appellant provided supervision, guidance for construction of greenhouse and carried out erection work as per the request of the clients. The department was of the view that the product manufactured and supplied by the appellant to various customers fails under the chapter heading 9406 of the Schedule to the Central Excise Tariff Act which covers pre-fabricated buildings of all materials and "greenhouse-ready to assemble sets" is included under tariff item no. 9406 0011 prior to 28.2.2005 and under the category "others" under tariff heading no. 9406 0019 from 28.2.2005. Accordingly a show-cause notice was issued demanding excise duty of Rs.67,14,858/- for the period 28.2.2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erials are transported to the site for further fabrication where the greenhouse was to be constructed. At the site, the appellant had undertaken the following activities: 1) Surveying the greenhouse plot, designing the formation level, casting of foundations, procuring for foundation etc. 2) fabrication of greenhouse structure at site 3) Erection of greenhouse structure at site. 4) Fixing of aluminium profiles to the structure, and 5) Fixing of plastic sheet to greenhouse structure. In respect of erection of greenhouse at the site, the appellant had paid service tax with effect from 1.5.2006 under the category of "erection of structures." The department had bifurcated the appellant's activity into service tax and Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rajasthan Spinning and Weaving Mills 2009 (238) ELT 3 (SC) c) Padmini Products vs. CCE 1989 (43) ELT 195 (SC) d) Jai Prakash Industries Ltd. vs. CCE 2002 (146) ELT 481 (SC) e) CCE vs. Chemphar Drugs 1989 (40) ELT 276 (SC) 4. Ld. AR on the other hand submits that the greenhouse is specifically covered under heading. 9406 and the appellant has undertaken manufacture of greenhouse which is an excisable commodity. The AR also relies on the judgment of Mittal Pipes Manufacturing Co, vs. CCE Delhi 2008 (231) ELT 196 (SC) wherein it was held that extended period is invocable in a case where complete pre-fabricated buildings were misdeclared as steel structures, which amounted to suppression of material facts. 5. We have carefully con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the appellant. On the materials procured, only in respect of GI pipes, the appellant is undertaking certain activities such as cutting, drilling, bending etc. By undertaking these activities it cannot be said that the appellant has manufactured a new product as by cutting or drilling holes, GI pipes remain GI pipes and by bending the pipe the product remains the same except that its shape is changed. Only at the site of the client, the appellant erects/commissions the greenhouse using the various raw materials supplied by him or using the material procured by the client and for the purpose of erection and commission, civil work is undertaken. In other words, the appellant has to make concrete foundation and the structure for the greenhous ..... X X X X Extracts X X X X X X X X Extracts X X X X
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