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Larsen & Toubro Ltd. Versus Commissioner of C. Ex. & S.T., Surat-I

2015 (5) TMI 1009 - CESTAT AHMEDABAD

Duty demand on fabricated structures for installation of plant and machinery - as per revenue the fabricated items cannot be classifiable under sub-heading No. 89.01 of the Schedule to the Central Excise Tariff Act, 1985 - assessee opposed the demand as that the goods are not marketable and hence not excisable - Held that:- The onus lies with the Revenue in respect of the marketability of the product. It has also observed that the marketability cannot be established on the basis of mere sale of .....

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ant for the purpose of construction of the jetty is commercially known as similar to pontoons in any market.

In view of the above discussion, we find that the demand of duty along with interest and penalty cannot be sustained. - Decided in favour of assessee - E/658/2007 - Final Order No. A/10505/2015/WZB/AHD - Dated:- 6-5-2015 - Shri P.K. Das, Member (J) and H.K. Thakur, Member (T) Shri Prakash Shah, Advocate, for the Appellant. Shri G.P. Thomas, Authorized Representative, for the Re .....

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icated for construction of jetty for unloading the raw material at Tapti river side. According to the Revenue, the appellants manufactured the floating structures/pontoons and used as construction aids. A show cause notice dated.21-5-1993 was issued, proposing demand of duty of ₹ 20,41,074.37 along with interest and penalty on the fabricated structures for installation of plant and machineries. There is a further demand of ₹ 10,26,794.47 along with interest and penalty on floating st .....

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rned Advocate appearing on behalf of the appellant contested the demand of duty on two counts mainly the fabricated items cannot be classifiable under sub-heading No. 89.01 of the Schedule to the Central Excise Tariff Act, 1985. The other ground is that the Revenue failed to establish the marketability of the temporary structures, for construction of the jetty. He relied upon the various decisions and filed a compilation of case laws. It has also contended that the demand is barred by limitation .....

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llants failed to discharge the burden of proof that the goods are not marketable. He relied upon the decision of Hon ble Supreme Court in the case of A.P. Electricity Board v. Collector of Central Excise, Hyderabad [1994 (70) E.L.T. 3 (S.C.)] and the case of Indian Cable Co. Ltd v. Collector of Central Excise, Calcutta [1994 (74) E.L.T. 22 (S.C.)]. 4. After hearing both the sides and perusal of the records, we find from the adjudication order that the appellants had undertaken the construct .....

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tral Excise Tariff Act, 1985 covers Other floating structures (for example, rafts, tanks, coffer-dams, landing-stages, buoys and beacons). The Note to Heading 89.07 of HSN provides pontoons of the hollow cylinder type used for the support of temporary bridges, etc. But pontoons having the character of vessels are excluded. 5. We find that there is no dispute on the fact that the appellant constructed the temporary structures for the purpose of construction of jetty. They have opposed the de .....

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cate submits that the Hon ble Supreme Court has over-ruled the decision of the Tribunal in the case of Gujarat Narmada Valley Fertilizer Co. Ltd. v. Commissioner of Central Excise, Vadodara [2005 (184) E.L.T. 128 (S.C.)], wherein it has been held as under :- 5. This view as has been recently reiterated in the decision of Union of India & Ors. v. Sonic Electrochem (P) Ltd. 2002 (7) SCC 435 where this Court was to consider whether the plastic body of an Electro Mosquito Repellent (EMR) wa .....

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e found, it is the commercial identity of the articles known to the market for being bought and sold. The fact that the product in question is generally not being bought and sold or has no demand in the market would be irrelevant. The plastic body of EMR does not satisfy the aforementioned criteria. There are some competing manufacturers of EMR. Each is having a different plastic body to suit its design and requirement. If one goes to the market to purchase the plastic body of EMR of the respond .....

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roduced by the Revenue was a test report which merely stated that the sample showed that the items were organic chemicals. It does not in any way establish marketability. Nor can marketability be established on the basis of mere stability. Something more would have to be shown to establish that DECA AND CMBE were known in the market as commercial products. 8. The Tribunal has ignored the evidence given by the employees of the appellant. In fact the wrong test was applied to determine the is .....

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marketable or was capable of being marketed. Manufacturing activity, by itself, does not prove the marketability. The product produced must be a distinct commodity known in the common parlance to the commercial community for the purpose of buying and selling. Since there is no evidence of either buying or selling in the present case, it cannot be held that the product in question was marketable or was capable of being marketed. Mere transfer of BMS by the appellant from its factory at Bangalore .....

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