TMI Blog2018 (3) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. It is also fairly well settled that the total consideration received is to be considered as cum duty price and such benefit will be entitled to the appellant. The demand for Central Excise duty under 9406 made in the impugned order is upheld but with the modification that the appellant will be entitled to CENVAT credit subject to the verification of documents - appeal allowed in part. - Excise Appeal Nos. 51339, 51340 & 51341 of 2017 - Final Order Nos. 50792 – 50794/2018 - Dated:- 26-2-2018 - Hon ble Mr. Justice (Dr.) Satish Chandra, President And Hon ble Mr. V. Padmanabhan, Member (Technical) Sh. M. K. Gupta, Advocate for the appellant Sh. R. K. Mishra, AR for the respondent ORDER Per: V. Padmanabhan The present appeals have been filed against the order-in-original No. ALW-EXCUS-000-COM-003-17-18 dated 03.05.2017 passed by the Commissioner of Central Excise, Alwar. 2. Brief facts of the case are that the appellant assessee is engaged in the manufacture of various types of pipes and irrigation system. The Department acted on an intelligence that the appellant was evading Central Excise duty in the manufacture and clearance of green houses , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommercial invoices. The bought out goods as well as those components manufactured in the factory were assembled at site into the form of green house which was not liable to payment of duty, being an immovable property. (iii) The department has considered the green houses to be classifiable under pre-fabricated buildings falling under 94060019. The adjudicating authority has charged Central Excise duty on the total value of goods including the goods manufactured in the factory as well as bought out components, even though the value of the bought out components was much more than the value of the goods fabricated in their factory. (iv) He submitted that the goods supplied by the appellant were not ready to assembly units for green houses and hence, they are not liable for classification under 94060011 as claimed by the adjudicating authority. They are classifiable only under 94060019. He further submitted that the HSN Explanatory Note under heading note 9406 specifies that when the parts of buildings and equipments are presented separately, (other than ready to assembly sets), such goods are excluded from the heading 9406 and are to be classified in their own appropriate head ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant is required to assemble such green house at the specific site and handover the same. In the appellant s factory some of the components required for such green house are fabricated. Such components include pipes, girders, column etc. The rest of the items required for putting together green houses are procured from outside. These include minor components such as nuts, bolts etc. and also major elements such as class/ polyfilm sheets which are required for use in the ceiling as well as wall of the green houses. It so happens that the value of bought out items are much more than that of the goods fabricated within the factory. Before proceeding further we reproduced below the competing tariff headings: 8424 Mechanical appliances (whether or not hand-operated) for projecting, dispersing or spraying liquids or powders; fire extinguishers, whether or not charged; spray guns and similar appliances; steam or sand blasting machines and similar jet projecting machines 8424 10 00 -Fire extinguishers, whether or not charged.......... 8424 20 00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merit classification under 8424. Consequently, such claim of the appellant is without merit. However, the more significant issue is regarding whether the appellant has cleared green houses in ready to assembly form. 7. The heading 9406 of the Central Excise Tariff covers pre-fabricated buildings. In this connection, Note 4 to Chapter 94 is reproduced below for ready reference: Note 4 of the Chapter 94 of CETA 1985, provide that- 4. For the purposes of heading 9406, the expression prefabricated buildings means buildings which are finished in the factory or put up as elements, presented together, to be assembled on site, such as housing or worksite accommodation, officers, schools, shops, sheds, garages or similar buildings. 8. The HSN Explanatory Notes to 9406 has provided guidance as to the scope of pre-fabricated buildings. For ready reference the same is reproduced below: This heading covers prefabricated buildings, also known as industrialised buildings of all materials. These buildings, which can be designed for a variety of uses, such as housing, worksite accommodation, offices, schools, shops, sheds, garages and greenhouses, are generally presente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case, we are convinced that the goods cleared by the appellant are classifiable under 9406 00 11 as green houses in ready to assemble sets and liable for payment of excise duty during the period under dispute. Such Central Excise duty is required to be paid on the entire value of the green houses i.e. including the value of both the components fabricated in the factory as well as those procured from outside. However, the appellant will be entitled to the benefit of cenvat credit on goods procured from outside subject to verification of such entitlement on the basis of documents to be produced by the appellant. The Adjudicating Authority will allow such cenvat credit after verification of documents which will be produced by the appellant, as per law. 14. It is also fairly well settled that the total consideration received is to be considered as cum duty price and such benefit will be entitled to the appellant. 15. In view of the above discussions, demand for Central Excise duty under 9406 made in the impugned order is upheld but with the modification that the appellant will be entitled to cenvat credit subject to the verification of documents. They will also be entitled to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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