TMI Blog2013 (11) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of other purchase orders - Held that:- The classification as pre-fabricated building cannot be changed for the reasons that roofing sheets or walls were bought-out items or supplied by the buyer of the product - The classification has to be decided by the facts whether the goods manufactured are made to measurements of a building and that the components manufactured and supplied will give essential characteristics of a building as may be seen from purchase orders and bills of materials. - it would be covered within the Heading 94.06 as pre-fabricated building. So, the goods supplied in respect of the other purchase orders are rightly classifiable under sub-heading No.9406.00. - Decided in favor of assessee. The finding of the adjudicating authority that though the purchase order terms the supply as ‘supply of pre-fabricated building’, the actual supply made by the assessee are steel structure is without examining all the purchase orders in proper manner - matter remanded back to the original authority to re-quantify the demand. - E/492/2002 and E/CO/201/2013, E/545 to 547/2002 and E/CO/143 to 145/2003 - Final Order No. 40334 -40337/2013 - Dated:- 26-8-2013 - Shri P.K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. Ambattur 4. 1168/2001 dated 30.8.2001 8/2000 -5/2001 (a) Children Education Society (b) Arunachalam Co. (c) Sanmar Alloy Castings (d) Sundaram Finance Ltd. (e) Godrej Agrovet 5. 377/2002 dated 25.2.2002 7/2001 -10/2001 (a) Brakes India Ltd. (b) Godrej Agrovet (vii) The respondents submitted replies to the show-cause notices. The original authority passed adjudication orders and the goods were classified under Heading 73.08 of the CETA, 1985 and confirmed the demand of duty after adjusting the amount of 8% on the value of the goods cleared at NIL duty by the respondents along with interest. The total amount of demand of duty in respect of five show-cause notices is Rs.23,57,543/- and penalty Rs.4,40,500/-. Commissioner (Appeals) set aside the adjudication orders and allowed the appeals filed by the respondents. Hence Revenue has filed these appeals and the respondents have also filed their cross-objections. 3. The learned AR on behalf of the Revenue reiterates the grounds of appeal. He submits that Note 4 of Chapter 94 provides the expression pre-fabricated building means build ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so National Tube Industries Vs. Commissioner of Central Excise, Chandigarh -1999 (111) ELT 80 (Tribunal). He further submits that the adjudicating authority had overlooked the various purchase orders of different companies. It is submitted that the Commissioner (Appeals) had examined each and every purchase orders and thereafter allowed the appeals and therefore the impugned order is liable to be upheld. 5. After hearing both the sides and on perusal of the records, we find that the dispute is whether the goods cleared by the respondents would be classifiable under Heading 7308 as claimed by the Revenue @ 16% advelorem or under Heading 94.06 as claimed by the respondents at nil rate of duty. For the purpose of proper appreciation of the case, the relevant portion of the Tariff and HSN Notes are reproduced below:- (i) Chapter heading CH 73.08 in CETA 1985 read as follows:- Structures (excluding prefabricated buildings of heading No. 94.06) and parts of structures (for example, bridges and bridge sections, lock gates, towers, lattice masts, roofs, roofing frameworks, doors and windows and their frames and thresholds for doors, shutters, balustrades, pillars and columns), of iro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... main argument is that in some cases the appellant did not supply walls and roofing sheets which are essential for a pre-fabricated building. In such cases the classification should be as structures of Heading 7308. 7. The adjudicating authority vide Order-in-Original dated 20.8.2001 observed that though the purchase order termed the supply as supply of pre-fabricated building , the actual supply made by the assessee are only structures. They were undertaking the work of erection of structure at site supplied by them, all other items of works were bought out items. The AC sheets which cover the structure are supplied by the customers themselves. The work order is not for a complete building but it is only for supply of pre-fabricated structure along with certain fixation work to be done at the site. 8. The Commissioner (Appeals) vide Order-in-Appeal dated 16.7.2002 after examining the purchase order observed as under:- 3. The customer for the sake of reduction in the contract value is procuring AC roof sheet and supplying to the appellant. The work order is inclusive of provision for the walls and roofs. In this regard, the learned Advocate urged that just because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are rightly classifiable under CSH 9406.00. The impugned order is therefore set aside. The appeal filed by the appellant company, is accordingly allowed. 9. We have also perused the purchase orders as under:- (i) Purchase Order dated 2.8.2000 of Children Education Society - Supply, fabrication and erection of 3 Nos. pre-fabricated building of size 40 x 120 long structure at site Bommanchalli, Bangalore Roofing included (ii) Purchase Order dated 4.9.2000 of M/s. M. Arunachalam Co. Project for M/s. De Zurik at MM Nagar, Chennai. Structural Steel Work pre-fabricated building. The scope of work with including Main Building, Lean to shed, scrap yard and cycle shed Roofing included. (iii) Purchase Order dated 17.1.2001 of Sanmar Alloy Castings Ltd. 1. Pre-fabricated steel building for Moulding Bay Extension- II 2. Pre-fabricated steel building for main factory at Viralimalai 3. Pre-fabricated steel building for furnace bay extension 4. Pre-fabricated steel building for steel bay extension (iv) Purchase order dated 22.12.2000 of C.R. Narayana Co. Pre-fabricated building 12m x 24m learn on first floor of M/s. Sundaram Finance Ltd. (v) Purchase order dated 24.2.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that every structure is not necessarily a building. The building must have a wall as is apparent from the HSN Explanatory Notes. It has been held that the structure supplied by the appellants in unassembled form cannot be treated as prefabricated building under Tariff heading 94.06. 11. In respect of other purchase orders, it appears that the respondent entered into contract for manufacturing pre-fabricated building as per drawing and specification of the contract. On reading of Note 4 of Chapter 94 and HSN Explanatory Notes, it is clear that pre-fabricated building whether in assembled form or unassembled form and to be assembled at site, it would cover within Heading No. 94.06. Regarding the submission of the learned AR that every pre-fabricated building should have wall as a component, we find from the diagrams for the factory at Viralimalai, that the walls are made of pre-fabricated concrete slabs. In our considered view, the classification as pre-fabricated building cannot be changed for the reasons that roofing sheets or walls were bought-out items or supplied by the buyer of the product. The classification has to be decided by the facts whether the goods manufactured are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng only. 13. In the case of National Steel Industries (supra), the appellants entered into a contract for supply of 73 storage shelters and they had to supply pre-fabricated steel tubular shelters complete in all respects according to drawing and specification mentioned therein. The appellant claimed that they supplied under work order was structures of iron and steel manufactured by them along with certain duty paid bought out components. The Tribunal observed that prefabricated building may be cleared in knocked down conditions and assembled at site by welding etc. It is further observed that a prefabricated building can be assembled on the ground without separate flooring. It has been held that once it is a prefabricated building, there is no question of bifurcation between the manufactured items and bought out item. So, in the present case, we are unable to accept the contention of the learned AR that the respondent had used bought out item and it is not prefabricated building. 14. We find that the finding of the adjudicating authority that though the purchase order terms the supply as supply of pre-fabricated building , the actual supply made by the assessee are steel str ..... X X X X Extracts X X X X X X X X Extracts X X X X
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