TMI Blog2017 (7) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... such market for the product. The execution of work order which is for the completely erect custom made Chimney by itself does not satisfy the question of marketability. Admittedly, the dimensions and designs for the said Chimney flue is specifically to the particular work and the impugned order did not justify the grounds of marketability before arriving at a finding - Tribunal in the case of J.K.Synthetics Ltd. v. Commissioner of Central Excise, Jaipur [1999 (5) TMI 366 - CEGAT, NEW DELHI] dealt with a similar item and held that the evidence of marketability is lacking and as such duty liability cannot be fastened on such goods - appeal allowed - decided in favor of appellant. - Appeal No. E/475/06 - Order No. FO/A/76148/2017 - Dated:- 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present appeal, are not dealt with elaborately in the said final Order. Accordingly, the ld.Counsel for the appellant pleaded that the said final Order cannot be inferred as recording findings on merits contested in the present appeal. 3. Ld.Counsel for the appellant contested the findings of the original authority mainly on the following grounds:- (A) The appellants have executed a composite works contract for erection of huge Chimney for M/s. NTPC. The iron and steel items were fully supplied by M/s.NTPC. The appellant provided labour services along with all the fabrication work and ultimate erection of the Chimney. There is no excisable product emerging during the course of erection of the said Chimney. (B) Even with the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant at site of M/s.NTPC in connection with execution of the work order for erection of Chimney will be liable to Central Excise duty. We have perused the work order as well as the type of materials which are fabricated by the appellant. It is clear that this huge steel Chimney flues are specifically designed for erection of Chimneys for M/s.NTPC. The Revenue holds that these are other pipes and tubes . We have perused the Tariff Entry for 7305. The dimension may match the residual entry with the product under consideration. However, it has to be noted that the structure which is emerging on fabrication is pre-designed to such dimension and intended only for the said Chimney. These are not tubes and pipes of particular dimension, of ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les and other structural items which cannot be compared with the present product which is fabricated intermediate items for the erection of Chimney. 7. Further we note that the Tribunal in the case of J.K.Synthetics Ltd. v. Commissioner of Central Excise, Jaipur [2000 (124) E.L.T. 643(Tribunal) dealt with a similar item and held that the evidence of marketability is lacking and as such duty liability cannot be fastened on such goods. We also refer to the decision of the Tribunal in the case of Dodsal Pvt.Ltd. v. Commissioner [2006 (193) E.L.T. 518 (Tri.Mum.)], which was affirmed by the Hon ble Supreme Court in 2015 (320) E.L.T. A36 (S.C.) and decision of Hon ble Supreme Court in the case of Moti Laminates Pvt.Ltd. v. Collector of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X
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