TMI Blog2012 (9) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... eason as according to him launching trusses as classifiable under 8425 to which this notification is not applicable. But since the goods have been held to be classifiable under 73084000, the eligibility for notification no. 3/05-CE would have to be considered for which it has to be ascertained - and the matter is remanded to Commissioner for denovo adjudication - set aside the duty demanded - in favour of assessee. - Excise Appeal Nos.E/2548 & 2345 of 2009 - A/751-752/2012-EX(BR) - Dated:- 2-7-2012 - Ajit Bharihoke, Rakesh Kumar, JJ. For Appellant: Shri P K Sahu, Adv. For Respondent: Shri S R Meena, AR Per: Rakesh Kumar: The appellant had contract with Delhi Metro Rail Corporation (DMRC) for construction of elevated viaduct of 5.222 kms. Length and four stations on Vishwavidyalaya Jahangirpuri section of MRTS Phase-II. For construction of elevated viaducts they were required to fabricate - "prefabricated structural segments at the casting yard allotted to them by DMRC on Ring Road, opposite Model Town-III, Block-H, New Delhi . The pre-fabricated segments were moved to the site of construction of elevated viaduct. For placing the pre-fabricated segment between pier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17.2.11. This ROM was dismissed by the Tribunal vide order no.445/11-Excise dated 5.8.2011. 1.3 The department filed an appeal before Hon'ble Delhi High Court against Tribunal's order dated 5.8.2011. Hon'ble Delhi High Court vide order dated 14.11.2011 holding that launching trusses are not covered by notification no. 2/11-CE (NT) dated 17.2.2011, remanded the matter to the Tribunal for deciding the issue of durability of the launching trusses, as this aspect has not been examined in the Tribunal's order dated 14.3.2011. 1.4 In pursuance of the above order of the Hon'ble Delhi High Court in respect of the appeal No.E/2548 2345/2009, the question of excisability of launching trusses and recovery of duty in respect of the same and also the question of their confiscation was heard. 2. Heard both the sides. 3. Shri P.K. Sahu, Advocate, the learned Counsel for the Appellants, pleaded that "launching truss" is a steel structure fabricated at site and is site specific, that it is a sort of massive beam made of steel which is fabricated and assembled at site, that its mobility is very limited, that it is placed on two adjoining pillars to take the necessary load to carry pre-fab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s brought into existence different from mere raw material namely angles or tubes used in making of the truss. Large Industries have thrived in manufacture of trusses and purlins of use in the erection of steel structures and there is a huge market world over for such products as is clear from the advertisements issued by manufacturers of iron and steel structures such as stramit roofing, walling, rain water and structural products referred to during the hearing. Truss prices are listed on the websites for various spans of trusses with delivery information, by those dealing in building supplies." Shri Meena, therefore, pleaded that launching truss is a marketable product chargeable to central excise duty- 5. We have carefully considered the rival submissions and have perused the records. The point of dispute in this case is as to whether the launching trusses fabricated by the appellant are chargeable to duty. In this regard, the undisputed facts are that - (a) the launching trusses are fabricated at site and have very limited mobility; (b) they are used for placing the pre-fabricated segments between the piers for construction of elevated viaducts and for this purpose, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o provide a uniform nomenclature developed by the World Customs Organization (WCO). It comprises about 5,000 commodity groups, each identified by a six digit code, arranged in a legal and logical structure and is supported by well-defined rules to achieve uniform classification. The system is used by more than 190 countries and economies, as a basis for their customs tariffs and for the collection of international trade statistics. Over 98% of the merchandise in international trade is classified in terms of the HS. 9.6 The HS contributes to the harmonization of Customs and trade procedures, and the non-documentary trade data interchange in connection with such procedures, thus reducing the costs related to international trade. It is also extensively used by governments, international organizations and the private sector for many other purposes such as internal taxes, trade policies, monitoring of controlled goods, rules of origin, freight tariffs, transport statistics, price monitoring, quota controls, compilation of national accounts, and economic research and analysis. The HS is thus a universal economic language and code for goods, and an indispensable tool for international t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elves involve manufacture of an article, but, converting raw material like angles, tubes, plates etc. to bring about a distinct commodity will surely amount to manufacture as it is not "mere" drilling holes or cutting, hut the activity is aimed at bringing about a distinct commodity. Thus, making of porta cabin from iron and steel angles with, roof frame-work i.e. trusses, doors, windows, ladders in it made by drilling holes and cutting the raw material, will be a movable structure having identity as a distinct marketable commodity. When the porta cabin is dismantled it nontheless 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gineering, fabricated for use in a structure to support its roof. In architecture and structural engineering, a 'truss' is a structure consisting of straight slender member connected at joints. In order for a 'truss' to be rigid, it must be composed entirely of triangles. Such trusses are statically determinate, because the stress in each and every member can be completely determined once we know the external loads and the geometry of the truss. It is widely known that there are leading manufacturers of steel building products, including roofing's, walling, gutters and fascias, frames, and trusses, purlins, flooring and structural frame-work having distribution centres assuring on time delivery. Structural products include a huge range of purlins in C and Z profiles for use as roof purlins or wall girts all cut to length. A snap-in purlin bridging system for quick installation was also widely known. 11. Thus, when a truss is fabricated a distinct article is brought into existence different from mere raw material, namely angles or tubes used in making of the truss. Large industries have thrived in the manufacture of trusses and purlins of use in the erection of steel structures an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it of this exemption would have to be extended. But the Commissioner in the impugned order, has not discussed the eligibility of the launching trusses for. notification no. 3/05-CE , probably for the reason that in the impugned order, he held the launching trusses as classifiable under 8425 to which notification no. 3/05-CE is not applicable. But since the goods have been held to be classifiable under 73084000, the eligibility for notification no. 3/05-CE would have to be considered for which it has to be ascertained - (1) the launching trusses are fabricated at site; and (2) if so, whether their design is site specific and the same have to be necessarily used in connection with construction of elevated viaduct at that site only and are used at that site only. For determining the eligibility for exemption notification no. 3/05-CE after ascertaining the above factual position, the matter has to be remanded to the Commissioner for de novo adjudication. The question of duty demand from the Appellant Company and penalty on the Appellant Company and its DGM, Shri B.K. Sinha would arise only if the appellant company are not liable for notification no. 3/05-CE . 8. In vie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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