TMI Blog1992 (10) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... t company has a Staple Fibre Division and an Engineering Division at Nagda, M.P. In the course of manufacture of viscose fibre at the appellants factory at Nagda, Sodium Sulphate in liquid form is obtained as a by-product. The plant known as Evaporator J is necessary to dry up the liquid sodium sulphate and to reduce it to powder form for packing it and making it marketable. Evaporator J is a plant consisting of several verticle tankers of large dimensions having outlets for pipe connections and pipes of varying sizes connecting the various segments of the said plant. The appellants imported some of the parts and articles from abroad and cleared the same on payment of excise duty. Some articles worth Rs. 1,64,000/- were manufactured in the appellants Engineering Division at Nagda and no excise duty was paid on these articles as they were exempt under Notification 118/75-C.E., dated 30-4-1975 as they were not complete machinery, and some articles worth about Rs. 1.78 lakhs were purchased from the market. The uncontroverted position is as follows : 4. A cement concrete platform was constructed upon which iron girders and the supporting structurals were fixed. Thereafter, differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T. 352, CCE, Baroda v. Dodsal Pvt. Ltd., Baroda 5. 1988 (36) E.L.T. 613, SAE (India) Ltd. v. CCE. 5. The learned Counsel, Shri Gupta next submits that the demand is barred by limitation as the show cause notice proposing levy of duty for construction completed in January 1984 was issued only on 29-3-1985 and there is no whisper of suppression or mis-declaration in the show cause notice. The appellants had informed the Department on 30-4-1984 that most of the components of the Evaporator plant were duty-paid items purchased from the open market while a few components falling under TI 68 were supplied by the Engineering Division without the benefit of Notification 118/75. In addition certain imported components were also used in the Evaporator. Thus the installation of the Evaporator in the Staple Fibre Unit was in the knowledge of the excise officers in their factory which was working under the Production Based Control, 1978. He submits that the Excise authorities used to regularly visit the factory during the course of the erection of the plant and were fully aware of the nature of construction. He submits that in view of the settled legal position in the light of the case law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t goods without payment of central excise duty and without compliance with the Central Excise formalities, the question of time bar did not arise under Rule 9(2) of the Central Excise Rules at the relevant time. However, he failed to note that the decision in Rekha Industries was rendered in the context of Rule 9(2) as it existed during the relevant time when it did not stipulate any period of limitation. However, in 1980 November, Rule 9(2) was amended to incorporate the period of limitation prescribed under Section 11A in to Rule 9(2) and, therefore, for this reason the applicability of Rekha Industries is straightaway ruled out. 8. We find force in the arguments of the learned Senior Counsel that the appellants were under a bona fide belief in view of the existing case law that erection at site would not give rise to manufacture of excisable goods and, therefore, it cannot be inferred that there was any intention on the part of the appellants to evade payment of duty. The Hon ble Supreme Court has held in the case of Collector of Central Excise v. Chemphar Drugs and Liniments reported in 1989 (40) E.L.T. 276, that in order to make a demand under Section 11A for a period beyond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at they would hop into Item 68. There is no evidence that such pieces, small or big, are being sold in the market as component parts of a transmission tower." Transmission tower is a metal or timber structure used to carry a transmission line. It is an engineering device for the purpose of holding electricity transmission lines. We have come across component parts of a machinery, component parts of a vehicle, and such other goods. But one cannot say that there could be component parts of a transmission tower. For other essential parts would differ in size and dimensions depending on the location where tower has to be erected. The term structural shape means the joining of individual members of a structure to form a complete assembly. The structure itself does not come into existence at the place of clearance. The materials required for completing a tower etc. could be individual items collected at the spot for convenient transport of the items. But one cannot say that the component parts of a structural design are removed in a CKD fashion to be assembled at the site. In the decision 1986 (8) E.C.R. 166 the Tribunal has considered the scope and nature of excisability of structurals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin Item 26AAA and if there is no transformation into a different commodity, the recourse to Item 68 would not be justified. The Appellate Collector has rightly observed that the activity would not come under the purview of a manufacture and the transmission towers which were erected at the site from the structural material would be permanent structures and would not admit of the definition or description of the goods. The decisions under the Sales Tax Act cited by the SDR have been given with reference to particular provisions and do not have material bearing to deter- mine the excisability of the products in the proceeding. The other decisions cited by the SDR are with reference to the facts and circumstances of those cases. Though the principle laid down in those decisions cannot be questioned the facts of the present case are different. The facts are more or less similar to the fact, in Aruna Industries case." 9.1 In the case of Hyderabad Race Club v. Collector of Central Excise, Hyderabad reported in 1986 (23) E.L.T. 274 it has been held that the Totalizator System which has been erected at site and is permanently fixed to earth cannot be called to be movable and hence cann ..... X X X X Extracts X X X X X X X X Extracts X X X X
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