TMI Blog2018 (7) TMI 989X X X X Extracts X X X X X X X X Extracts X X X X ..... ustomer and though attached to the earth would be excisable, cannot be accepted fully - if the goods are fabricated at site according to design of customer, forming a whole structure, will not be dutiable as clarified by Board Circular. Whereas in the case of structurals which have been prefabricated at the premises of the respondent and brought to the site may attract duty. These aspects have to be examined. Penalties - Held that:- The appellant has paid up ₹ 11.50 lakhs on being pointed out and also that the issue is an interpretational one and was mired in litigation - the penalties cannot sustain and, therefore, this part of the order does not require interference. The matter is remanded for reconsidering the demand of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) has wrongly relied upon the CBEC Circular No. 58/1/2002 C. Ex. Dt. 15.01.2002. On scrutiny of the sales invoices, it was clear that the respondents had manufactured and removed structures without payment of excise duty. The respondents were engaged in steel fabrication works and erection/commissioning at factory site. 2.2 The appellants have admitted in the reply notice that materials such as angles, square tubes, beams, fixtures, were procured and fabricated as per customers requirement, specified in the drawing which results in structures such as Roof Frames, Sun Beam O.P. Panel, Entrance Welcome Board, Hand Rails, Light Structures, etc. The larger Bench of the Tribunal in the case of Mahindra Mahindra Ltd. Vs. C.C.E. Aurangabad, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they became integral part of immovable property itself and, therefore, do not attract central excise duty. Items so fabricated are not moveable as such and they are not capable of being dismantled without damage to the structure; and not capable of being sold in parts even if dismantled as these are designed for the customer alone. The Commissioner (Appeals) has relied on the CBEC Circular No. 50/1/2002 C. Ex. Dt. 15.01.2002 wherein it has been clarified that for items assembled or erected at site, attached to earth and which cannot be dismantled without substantial damage to its components, cannot be considered as moveable properties and, therefore, are not excisable goods. On perusal of records, we are not able to make out the facts as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed otherwise than in a factory. In Aruna Industries Vishakhapatnam Ors. Vs. C.C.E. Guntur Ors. [1986 (25) E.L.T. 580] the issue was dutiability of structurals manufactured in open site, i.e., otherwise than in a factory as defined in Section 2(m) of the Factories Act. The said decision, which held that there can be no levy of excise duty, was approved by the Hon ble Apex Court in C.C.E. Nagpur Vs. Wainganga Sahkari S. Karkhana Ltd. as reported in 2002 (142) E.L.T. 12. The Board Circular referred above is in consonance with this decision. The argument of the Revenue that if such structurals, parts, etc., are fabricated at the site also as per design and requirement of customer and though attached to the earth would be excisable, cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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