9911796707
TMI Blog2000 (11) TMI 728X X X X Extracts X X X X X X X X Extracts X X X X ..... ing items and the contention of the appellants are also indicated as below :- Items/Goods involved Findings in the impugned Order - Itemwise Appellants' Contention Pile Liner These are hollow profiles of uniform diameters used for the purpose of lining the concrete to provide additional protection to it. Pile Liners consist of one or more segments and each segment is a hollow profile of specified length and diameter. Their hollow profiles are nothing but tubes and pipes of steel. Relied on HSN pages 1016 and 1017. Before they are embedded into the earth, they have already acquired status of a distinct identifiable product. 1. Duty was demanded in the SCN on Pile Liners and not on segments thereof. It is not denied that Pile Liners, as a whole, came into existence while it is embedded in the earth. Hence, the Pile Liners are immovable goods. The reasons given on page 8 of the order while dropping the demand on well liners will also apply to Pile Liners. 2. The individual segments of hollow profiles are not tubes or pipes of heading 7305.90. 3. In any case, no evidence has been produced to prove that such individual segments which are fabricated for the specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... structure which is fabricated at site after embedding the vertical members into concrete foundation in the river bed. 2. It is not marketable as it has no commercial identity and is incapable of being bought to the market for sale. 3. Tariff Entry - 7308 was introduced w.e.f. 1-3-1988, whereas duty has been demanded under their heading from February 1987. 4. Demand is time barred entirely for the first SCN and partly for the second (month of February, 1989) No allegation or finding that there was an intention to evade payment of duty. 5. Duty demanded after 20-3-1990 is any way not sustainable in view of Exemption Notification No. 61/90 dated 20-3-1990. Working Platform Is a steel structure put up in the middle of the river to facilitate stationing of men & materials. It comprises of girders, plates & angles. The girders are first driven into the river beds. Angles & plates are then fitted on the top of the girders to obtain the platform. It is true that it comes into existence in the shape of the structure attached to the earth. An article can be treated as immovable attached to the earth only if the attachment was sought to be above on a permanent basis. This is capable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Another important ingredient stressed is that it should be manufactured out of the raw materials. Here Shri V.K. Jain states that all these items under consideration could only be treated as immovable properties. He described to us as to how the department has proceeded on wrong line of approach. He states e.g. in respect of Pile Liner which consist of various segments of hollow profiles of uniform diameters. The show cause notice does not propose to levy duty on each segment manufactured, but it proceeds to levy duty on the final product namely Pile Liner which is nothing but an immovable property. He states the adjudicating authority has failed to give a finding as to how longer period of limitation could be invoked in these cases. He elaborately described with the help of photograph, the nature of the items and try to demonstrate as to how these items are immovable properties. He relied on various judgments to prove his clients case. 5. As against this the Ld. DR would invite our attention to the findings given by the adjudicating authority especially inter alia in page 8 of the order dated 27-4-94. He also stated that in page 9 of the order the adjudicating authority has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstruction purpose. The height of these storage tanks are kept higher than the bridges height to ensure the regular delivery of water of every point of bridge by gravity and after completion of project completely dismantled, into plates and transferred to other projects as and when required. The each of the item when we look into the same one common thread seems to run namely the items are embedded to earth. The show cause notice does not proceed on the basis of charging to duty when individual segments which make either PILE LINER or SHUTTERING. In fact show cause notice dated 13-9-90 states that the items manufactured by the Corporation for the period from February, 1989 to May, 1990 are given below and the same are liable to Central Excise duty as under : - Whereas it appears that in the construction of the said bridge they are required to fabricate/manufacture certain items of Iron & Steel of bridge section which is liable to Central Excises duty under Central Excise and Salt Act, 1944 (hereinafter called the Act) and Central Excise Tariff Act, 1985 (hereinafter called the Tariff Act). The items manufactured by the Corporation for the period from February, 1989 to Feb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The lingering doubt about the dutiability of immovable structures, need not cast their shadow on the excisability of these items, in view of the fact that these items cannot be treated as immovable. Various judicial pronouncements cited by the party in support of their argument that immovable property cannot be charged to duty, have no relevance in the circumstances discussed above. It is observed that considerable emphasis has been placed by the party on the argument that the goods which they have manufactured, cannot be called goods within the meaning of Central Excises and Salt Act, 1944. However, this argument is not acceptable in view of the detailed findings given above in respect of each of these items". The argument of Shri B.K. Choubey is considered, it is relevant to mention the finding given by the same adjudicating authority in respect of well liners : "Well Liners : Well liners are constructed at the site of construction inside the river with the M.S. Plates, part by part. In this case, I find myself in agreement with the party when they claim that the original well liner comes into existence only in the form of a structure embedded into the earth. It is also to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e finds as follows : "But the fact remains that before these hollow profiles are embedded into the earth, they have already acquired the status of a distinct identifiable product consequent to the processes of cutting to size, bending and welding of steel plates. It is apparent that the processes of cutting to size, bending and welding of steel plates, bring into existence a different hollow profiles which become chargeable to duty. The moment the hollow profiles are obtained, such profiles are chargeable to duty and are a different commodity from the steel plates, which were used as a raw material." We cannot understand how he could treat this especially pile liner as movable. This in our view is contradicting himself when we see the nature of the items under consideration. It is possible for us to find here that these items are immovable property only, not movable properties. 9. Moreover one more point needs to be mentioned for consideration. These items are Custom made in the sense this item has to be for execution of a particular contract. It is not easily bought or sold as standard items. The show cause notices do not proceed on the basis that they are marketable. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Primarily, the court will have to take into consideration the intention of the parties when it decided to embed the machinery whether such embedment was intended to be temporary or permanent". Here for all the items before us the individual segment of the finished product are fixed to earth in a permanent way. Each finished product has to be made for that particular contract. It is another matter that if the appellant has requested a job worker to make these items and whether the action of the job worker in creating said structures would amount to manufacture or not. Because the show cause notice and the facts do not proceed on that basis. As far as the invocation of larger period of limitation is concerned the structures were made just opposite to office of the Collector of Central Excise. It may not be stated that he did not know it, which is a very peculiar feature in this case. In fact in the case cited by the party in respect of Dempo Engineering Services also same thing happened and we have held that on facts that duty cannot be levied. There also the structures in those cases were built opposite to the Collector (Appeals). 10. It is no doubt true the Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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