TMI Blog2016 (4) TMI 625X X X X Extracts X X X X X X X X Extracts X X X X ..... uted to earth but with the common objective to place the HR coils on the said saddles. Thus, the circumstances in their earlier case decided by this Tribunal earlier is quite different from the present one, therefore, the judgement delivered in connection with fabrication of ladders and staircases at site, would not be comparable to the facts of the present case, accordingly, not applicable. Therefore, we have no hesitation to hold that the appellant are the manufacturer of the saddles. Benefit of Notification NO.61/90-CE dated 20.03.1990 and Notification No.41/94-CE dated 01.03.1994 - Held that:- The sole object for which saddles were fabricated was for its use in storage of the HR coils in the factory premises and grouting has been done by fixing with nuts and bolts only for the purpose of making it stationery, hence, such grouting cannot be considered as construction work. In the result, the appellant also failed to substantiate their claim on exemption from duty on the saddles under the above two Notifications. Invoked extended period - Held that:- We find substance in the argument of the Revenue inasmuch as the appellant is required to disclose the true description of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nufactured and captively consumed 240 numbers of saddles classifiable under chapter sub-heading 7308.90 of CETA, 1985 valued at ₹ 2,02,39,450.00 without payment of duty of ₹ 30,35,917.50. On adjudication, the demand was confirmed and penalty of ₹ 30,35,917.50 was imposed under the provisions of Rule 9(2) and 52A of Central Excise Rules, 1944 and penalty of ₹ 1.00 Lakh under Rule 9(2), 52A(B) and 173Q of Central Excise Rules, 1944 was imposed. Besides 240 number of saddles valued at ₹ 2,02,39,450.00 were confiscated under Rule 173Q of Central Excise Rules, 1944 with option to redeem the same on payment fine of ₹ 1.00 Lakh. The said Order was challenged by the Appellant before this Tribunal and this Tribunal Remanded the matter to the Commissioner for fresh adjudication vide Order No.A-314/Kol/2001 dt.21.05.2001. 2.1 In the second adjudication order No.60/COMMR/2001 dated 31.12.2001, the same amount of duty was confirmed, but in addition to the penalty of ₹ 30,35,917.50 imposed earlier under section 11AC, penalty of ₹ 30,35,917.50 was also imposed under Rule 173Q read with Rule 9(2) and 52A of the Central Excise Rules, 1944; besides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.EA/157/05 were barred by limitation in as much in the first show cause Notice there was no suppression of facts as classifications lists were filed from time to time and in the second show cause notice all facts were within the knowledge of the department while issuing the first Notice, hence there was no suppression of facts. He has also argued that in the event of aforesaid argument of the appellants are not acceptable they are entitled to the benefit of MODVAT Credit on the inputs/raw materials used in or in relation to the fabrication/manufacture of saddles. 3.1. Elaborating the said arguments, Ld. Sr.Advocate submitted that the inputs/ raw materials used and process undertaken by the fabricators to bring out saddles comprises of basically a horizontal plate (laid down on the earth) measuring 1 meter in width and 10 meters in length, over which smaller plates are gas-cut and welded in V shapes at an angle of 450 each from the base, which are later grouted to earth. He has contended that the fabrication is carried out by two contractors, namely, M/s.U.B.Engineering Ltd. and M/s.Eastern Transport Agencies where as foundation and grouting work was carried out by a third party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity Board v. CCE - 1994 (79) ELT 3(SC) does not support the findings of the Commissioner. 3.4 Advancing the second line of the argument, the learned Sr. Advocate submitted assuming that the said saddles were manufactured then the Appellant cannot be treated as the manufacturer of the said saddles, but the respective fabricators, namely, M/s.U.B.Engineering Ltd. and M/s.Eastern Transport Agency Ltd., who has fabricated the saddles were the manufacturers. In this regard he has referred to the statement of Shri M.K.Bhuyan, Resident Engineer, M/s.U.B.Engineering dated 30.01.1995 and the work order dated 26.04.1993 issued to the said fabricator, and the findings of the adjudicator in the first order dated 16.02.1999 that the fabrication and manufacture being done by the contractors, liability to pay duty could only rest with the contractors and the appellant could not be held to be the manufacturer of saddles nor any duty could be demanded form them. Assailing the finding of the ld.Commissioner that they had supplied of all raw materials/inputs to the contractors and having all controls and supervision over the manufacturing of the said goods and exercising the right to tell the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drawing namely anchoring details of coil storage saddle for Hot Strip Mill against a separate work order. It is his contention that the construction work was carried out by M/s.Aparna Construction Co. subsequent to the manufacture of the saddles, therefore, there cannot be any doubt that these fabricated goods had satisfied the condition of the Notifications of its use in construction work and accordingly entitled to the benefit thereunder. It is his submission that the ld.Commissioner has failed to appreciate their submission that the work carried out for erection of the saddles involve construction work, hence, the is untenable in law. In support, he has referred to the following decisions :- (i) CCE v. Afcon Pauling Joint Venture - 2005 (180) ELT 377(T) 2005 (187) ELT A68(SC), (ii) Simplex Concrete Piles (India)Ltd. v. CC CE - 2004 (172) ELT 369(T), (iii) Prestress (I) Pvt.Ltd. v. CCE - 2009 (245) ELT 269(T). 3.6 The learned Sr.Advocate further submitted that the demands are barred by limitation. In relation to Appeal No.EA-351/04, he has submitted that in the tariff heading 7308.90 there was no mention of description of goods known as saddles or coil storage s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded drawing and design to the fabricators and also raw materials/inputs including Oxygen gas and consumables for manufacture of the said saddles. The said fabrication was carried out at the instruction and under directed supervision of the appellants engineers at their factory premises. Throughout the manufacture of saddles, from the stage of raw materials, the ownership of the manufacturing remained with the appellants. It is his contention that saddles were first fabricated, thereafter these were fastened to earth with the help of nuts and bolts. These saddles were also mounted on wagons for transportation of HR coils. It is his contention that the appellants had issued excise invoices and discharged duty on saddles manufactured and mounted on railway wagons, whereas they have failed to discharge duty on the saddles used in storage of HR coils in their factory premises. 4.2 He submits that two demand notices were issued to the appellants; one on 10.06.1998 covering the period between May, 1993 and May, 1995 and the second one was issued on 08.09.2000 for the period from November, 1995 to January, 1996 and May 1998. In both these cases demands were confirmed on merit as well a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nefit of exemption Notifications were not admissible to the appellant. Further the appellant are not entitled to Notification No.67/95-CE dated 16.03.1995 in case of Appeal No.E-157/05. 4.5 Further, he has submitted that since the appellant had failed to produce any evidence to show that the materials were used for fabrication of saddles had suffered duty or were received against prescribed duty paying documents in accordance with the procedure laid down under Rule 57G of erstwhile Central Excise Rules, 1944, the appellant, therefore, not entitled for the CENVAT Credit, which they claimed. 4.6 The ld.AR further submitted that the show cause notices were not barred by limitation inasmuch as in the first show cause notice dated 10.06.1998 the appellant did not disclose specifically that they were engaged in the manufacture of saddles in their classification list filed under Rule 173B of erstwhile Central Excise Rules, 1944. In the classification list it was shown as fabricated steel structurals under tariff sub-heading No.7308.90 and such classification lists were effective from 25.07.1991, 01.03.1992, 28.02.1993 and 01.03.1994. The first work order for saddles was issued on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of marketability of fabricated/manufactured saddles, it need not be brought to the market for being bought and sold, but the capability of the said goods to be bought and sold in the market would suffice the purpose and object of marketability. 5.3 The principle to test marketability of goods in a given case has been clearly laid down by the Hon ble Supreme Court in A.P.State Electricity Board s case (supra). Their Lordships at para 10 had observed as under :- 10. It would be evident from the facts and ratio of the above decisions that the goods in each case were found to be not marketable. Whether it is refined oil (non-deodorised) concerned in Delhi Cloth and General Mills, or kiln gas in South Bihar Sugar Mills, or aluminium cans with rough uneven surface in Union Carbide, or PVC films in Bhor Industries or hydrolysate in Ambalal Sarabhai, the finding in each case on the basis of the material before the court was that the articles in question were not marketable and were not known to the market as such. The marketability is thus essentially a question of fact to be decided in the facts of each case. There can be no generalisation. The fact that the goods are not i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alling under heading 73.08 which remain excisable goods until they are permanently fixed to become part of some immovable structure. Therefore, in our opinion all the above items fall under Heading 73.08 are marketable commodities. 5.5 Recently while considering the excisability of an intermediate product, namely transmission assemblies which came into existence during the course of manufacture of Tractors the Hon ble Supreme Court in the case of Escorts Ltd. vs. CCE, Faridabad - 2015(319) ELT 406(SC) after considering the principle of law laid down by the Hon ble Supreme Court in earlier cases starting from UOI v. Delhi Cloth and General Mills 1977 (1) ELT 199 including AP State Electricity Boards case(supra), rejected the contention of the appellant that the transmission assemblies since not available in the market for being bought and sold, hence were not excisable goods being not marketable. Confirming the principles laid down in earlier cases, their Lordships have held that the product should be known in the market with a commercial name and the moment a product is commercially known in the sense of fulfilling practical test of being known to the persons in the market, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the Excise Act. But cases in which there is no assimilation of the machine with the structure permanently, would stand on a different footing. In the instant case all that has been said by the assessee is that the machine is fixed by nuts and bolts to a foundation not because the intention was to permanently attach it to the earth but because a foundation was necessary to provide a wobble free operation to the machine. An attachment of this kind without the necessary intent of making the same permanent cannot, in our opinion, constitute permanent fixing, embedding or attachment in the sense that would make the machine a part and parcel of the earth permanently. In that view of the matter we see no difficulty in holding that the plants in question were not immovable property so as to be immune from the levy of excise duty. (emphasis supplied) 5.8 Thus there is no doubt that the saddles are excisable goods and accordingly chargeable to duty. 5.9 The second line of argument advanced by the learned Sr.Advocate is that even if saddles are considered to be manufactured and excisable goods, the manufacturer of the said saddles were the fabricators and not the appellants. In thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riff heading 9403 of CETA,1985 in their factory premises out of the raw materials supplied by M/s.Raymond Ltd. and based on their own drawings and specifications. In that case also M/s.Raymond Ltd. had supplied all raw materials, consumables such as welding rods, cutting gases etc. required for such fabrication work in their factory premises. In this factual back drop this Tribunal relying the ratio laid down by the Honble Supreme Court on the subject and that of decision in Maruti Udyog Ltd. observed as follows: 5.2 An identical issue came up before this Tribunal in the case of Maruti Udyog Ltd. wherein Maruti Udyog Ltd. got fabrication of trolleys, bins and pallets in their factory premises by certain fabricators. Further, Maruti Udyog Ltd. supplied raw materials and consumables. In that context, this Tribunal held as follows : Fabrication of the items in dispute was not only carried out by the three different job workers within the factory premises of the appellants, but also on their shop floor itself. The appellants supplied all the raw materials for fabrication/repair/modification as well as the samples like welding electrodes, gas, paint, primer, thinner, etc. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant that they are not the manufacturers of racks and trolleys but the fabricators who actually undertook the fabrication work are the manufacturers. 5.12 A plain reading of the aforesaid judgment of this Tribunal, we find that the facts of the present case are more less similar to the above one and hence, the conclusion and principle recorded therein is squarely applicable to the present case. Besides, we find that for fabrication of similar saddles, when fitted to the railway wagons, the appellant had considered themselves as manufacturer and discharged duty even though the said saddles were also fabricated in their own premises from the raw materials supplied by the Appellant to the fabricators against same terms and conditions except that in one case the saddles were fitted in the Railway wagons and in another it were grouted to earth but with the common objective to place the HR coils on the said saddles. Thus, the circumstances in their earlier case decided by this Tribunal earlier is quite different from the present one, therefore, the judgement delivered in connection with fabrication of ladders and staircases at site, would not be comparable to the facts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods Rate Conditions 15. 73.08 All goods Nil If such goods are fabricated at site of work for use in construction work at such site 5.14 The common requirement in both the Notifications is that the goods falling under heading No.73.08 would be exempted from payment of whole of duty if fabricated at the site of construction work for use in such construction work. The learned Sr.Advocate made a sincere attempt to establish that the saddles were fabricated at site of construction and since it had been used thereafter for grouting to make it usable for storage of saddles, therefore, it should be construed as used in the construction work. We do not find force in the said contention of the appellant inasmuch as the sole object for which saddles were fabricated was for its use in storage of the HR coils in the factory premises and grouting has been done by fixing with nuts and bolts only for the purpose of making it stationery, hence, such grouting cannot be considered as construction work. In the result, the appellant also failed to sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extended period of limitation is applicable to the facts and circumstances of the present case. 5.16 In relation to Appeal No.EA-157/05, there is no dispute that the show cause notice was issued on 08.02.2000 for the period November, 1995 to January, 1996 and May, 1998 invoking extended period of limitation demanding duty on fabricated saddles used in the factory. We agree with the contention of the Ld. Sr.Advocate that second show cause notice on the same issue demanding duty invoking extended period of limitation is barred by limitation in view of the judgement of the Hon ble Supreme Court in Nizam Sugars case (supra). Consequently, the impugned order is unsustainable in law and accordingly liable to be set aside on the ground of limitation. Since, in our opinion the demand is barred by limitation, the other issues viz. eligibility of benefit of exemption 67/95 CE. Dt.16.03.1995 for captive use of saddles and correctness of the assessable value raised in the said Appeal become academic and accordingly not dealt with. 5.17 The next contention of the Appellant that in the event they are required to discharge duty on the saddles, since duty paid inputs were used in the manuf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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