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2017 (7) TMI 520 - CESTAT KOLKATA

2017 (7) TMI 520 - CESTAT KOLKATA - TMI - Manufacture - structures emerging during the course of erection of such chimney - whether fabrications carried out by the 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? - Held that: - The work order talks about erection of Chimney with the dimensions and designs as approved by M/s.NTPC. The design and drawing are all made specifically for such Chimney. There is n .....

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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:- 10-7-2017 - Shri P.K.Choudhary, Member(Judicial) And Shri B.Ravichandran, Member(Technical) Shri B.N.Chattopad .....

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duty on the structures which are emerging during the course of erection of such chimney. The Revenue entertained a view that the appellants were engaged in the manufacture of other tubes and pipes fall under Central Excise Tariff Heading 7305.90 and have to discharge duty on the same. The appellant contested the demand. 2. The case was adjudicated by the Original Authority, who confirmed Central Excise duty demand of ₹ 55,71,305/-. He also imposed penalty of equivalent amount on the appel .....

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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. Ther .....

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demand is barred by limitation as the appellants intimated the Revenue on 17.05.2001 itself regarding said contract. Thereafter correspondences were made between the Revenue and the appellant and ultimately a demand was raised on 29.08.2005, which is well beyond the normal period. 4. The ld.A.R. for the Revenue supported the findings of the original authority and stated that the product correctly falls under the classification of 730590 as other pipes and tubes and the contract with M/s.NTPC wi .....

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ed the appeal records. 6. The point of dispute is that whether fabrications carried out by the 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 t .....

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lly justify their nature. Even otherwise on the question of marketability of the product in dispute we note that the original authority concluded that the work order itself is a sufficient proof for marketability of the product. We are not convinced about the reasoning adopted by the original authority. The work order talks about erection of Chimney with the dimensions and designs as approved by M/s.NTPC. The design and drawing are all made specifically for such Chimney. There is no sale of such .....

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