TMI Blog2009 (9) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... d therefore we find that there is no justification for imposition of penalty under Section 11AC of CEA, 1944. We also find that the claim of the appellant for Cenvat credit should have been considered by the Commissioner and therefore, we direct that the appellants may be given the benefit of Cenvat credit admissible subject to production of necessary documents. We also allow the claim for treatment of price charged by the appellant as cum-duty-price. Appeal is partially allowed in above terms. - E/652/2008 - A/2045/2009-WZB/AHD - Dated:- 3-9-2009 - Ms. Archana Wadhwa, Member (J) and Shri B.S.V. Murthy, Member (T) S/Shri Naresh Thacker and Hardik Modh, Advocates, for the Appellant. Dr. M.K. Rajak, SDR, for the Respondent. [Order per: B.S.V. Murthy, Member (T)]. - M/s. Prem Fabricators, the appellant is engaged in manufacture and clearances of structures of iron and steel viz. beams, channels, pillars, columns, canopy, portals, trusses etc. During the period between December, 2006 to February, 2007, the appellants manufactured and cleared the structures of iron and steel valued at Rs.5,50,28,186/- from their factory premises to Central Warehousing Corporation, Mundr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied upon the ARE-1 form and the commercial invoices for his conclusion. He submits that their claim that if the electricity consumption at site was considered, the Commissioner could have easily come to the conclusion and could have easily noticed the electricity consumption at site was much higher than the electricity consumption in the factory. The very fact that there was high electricity consumption, compared to that in the factory, shows that the manufacturing activity actually took place in the warehouse under construction and not in the factory. He also submits that the appellants are entitled to the benefit of Cenvat credit of duty paid on the raw materials etc. and also the treatment of price as cum-duty-price both of which have been denied by the Commissioner in the event of their claim that the goods are not excisable, is not acceptable. He also cited several decisions of the Tribunal in support of his contention. 4. Learned SDR, on the other hand, submits that the Commissioner has relied upon the ARE-1 forms and the commercial invoices issued by the appellant. It was the appellant who described the goods in the 'description' column of ARE-1 form as "structure/stru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pment Commissioner, Kandla SEZ on 17-7-07 and he received a reply on 1-8-07 that there was no unit by name as 'CWC Kandla' functioning as SEZ unit in Mundra. He also clarified that even if CWC is functioning in SEZ, it had not acquired the status of SEZ unit to be eligible for tax concession. There is no dispute that the appellants are not eligible under the above notification as claimed and the goods were cleared under ARE-1 as well as invoices by the appellant. 7. It is the appellant's claim that subsequently they realized that it was a mistake on their part to have obtained registration and cleared the goods under ARE-1 and invoices to claim exemption under Notification No. 58/03 and actually the goods were not at all excisable. This claim was made before the original adjudicating authority after a show cause notice was issued by the Revenue requiring them to show cause as to why the duty with interest should not be recovered from them and why penalty should not be imposed upon them. The Commissioner has taken the claim into consideration and has elaborately discussed the issue in the impugned order and has come to the conclusion that the goods supplied by the appellant to CWC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per their instructions and specifications. 10. When we see the work order issued to the appellant by CWC, in the first work order, it was mentioned that order was for supplying and stacking of pre-engineered steel system for warehouse in super structure including roof sheeting, wall cladding and canopy. While releasing the order, it has been stated in the second paragraph "You are requested to start the supply immediately and ensure completion of supply as per Programme mentioned in terms and conditions of Schedule of Quantity which is enclosed herewith." Further, the Schedule of Quantities also shows the quantity as 18,750 sq. mtrs. and the description starts with the words "Supplying of fabricated pre-engineered steel structures" which also proceeds and says that it includes supply of columns, steel rafter, ties, bracing, purlins, sag rods, nuts and bolts, washers etc. Further, in the Terms Conditions, the CWC has clearly mentioned that rate shall be quoted by the contractor for supplying at site and is inclusive of all necessary applicable taxes. Further, it is also stated that no water and electricity will be supplied by the department to the contractor/supplier. 11. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed and to provide proper outlet for rain water and flashings at the corner ends of the structure respectively. The corrugated sheets are used by the assessee by cutting the sheets to the required length/width wherever required. Similarly other aluminium materials are shaped/sized and attached to the roof structure for providing necessary drainage. This activity which merely involved cutting of sheets for the purpose of covering the shed cannot be considered as a manufacture and the decision in the Mahindra Mahindra case cited by learned S.D.R. is not relevant as none of these items comes into existence here." As may be seen, M/s. Telco was manufacturing only roof structures by cutting the sheets. 15. On the other hand, learned SDR has relied upon the decision of Hon'ble Supreme Court in case of CCE, Jaipur v. M/s. Man Structurals Ltd., 2001 (130) E.L.T. 401 (S.C.), Tribunal's decision in the case of M/s. Aarti Steels Ltd. v. Collr. of C.E., Chandigarh - 2002 (144) E.L.T. 360 (Tri.-Del.) and Larger Bench decision of the Tribunal in case of Mahindra Mahindra Ltd. v. CCEs, 2005 (190) E.L.T. 301 (Tri.-LB). The decision of the Larger Bench is very relevant to the facts of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be a movable structure having identity as a distinct marketable commodity. When the porta cabin is dismantled it nonetheless remains the manufactured products i.e. porta cabin dismantled or disassembled. The material such as angles, rods, shades, sections plates, tubes, etc. of such designed, structure in their pre-assembled or disassembled form are prepared for use in the said structure, namely porta cabin. One cannot, with any conviction or authority, say that these dismantled parts of the structures are raw material used in its original form and that mere cutting or drilling holes has made no difference. The items in the parenthesis of Heading 7308 described as excisable goods include roofs, roofing frame-work, doors, windows and their frames, thresholds for doors, shutters, pillars, column, balustrades pillars, sheets of iron arid steel, each one of these items has a complete distinct identity. 11......when a truss is fabricated a distinct article is brought into existence different from mere raw material, namely angles or lubes used in making of the truss." 16. We, therefore, find no reason to set aside the impugned order and the decision of the Commissioner regarding c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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