TMI Blog2019 (5) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... that this kolas are be used at some other port. Demand cannot sustain - appeal dismissed - decided against Revenue. - Appeal No. E/455/2011 - A/30315/2019 - Dated:- 21-2-2019 - Mr. M.V. RAVINDRAN, MEMBER (JUDICIAL) And Mr. P. VENKATA SUBBA RAO, MEMBER (TECHNICAL) Shri Guna Ranjan, Superintendent (AR) for the Appellant. Shri G. Natrajan, Advocate for the Respondent. ORDER Per: M. V. Ravindran This appeal is directed against Order-in-Appeal No. 10/2010 (G) (D)CE dated 18.11.2010 and filed by the Revenue. 2. The relevant facts that arise for consideration after filtering out unnecessary details are respondent herein was awarded a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon by the judgment of Apex Court in the case of Board of Trustees Vs. CCE, Andhra Pradesh [2007 (216) ELT 513]. Revenue preferred an appeal against such an order before the First Appellate Authority. The First Appellate Authority also after following due process of law, upheld the Order-in-Original hence this appeal by the revenue. 3. Learned Departmental Representative after giving the bench overall picture of the issue involved, submits that the First Appellate Authority has erred in not noticing the fact that the kolos are marketable as the contract awarded to appellant as a EPC contract wherein kolos are used for Breakwaters and hence are marketable; Commissioner (Appeals) were in error in holding that kolos are Brea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constructing Krishnapatnam Port. It is undisputed that the respondent herein was awarded a EPC contract for construction of port at Krishnapatnam Port and the entire EPC contract included construction of Breakwaters in order to make the water still and come in the port area for which they produced the said kolos. It is also undisputed that this kolas were manufactured keeping in mind the specific requirements of Krishnapatnam Port. On this factual matrix, we find that the First Appellate Authority in the impugned order has given a detailed finding which we concur with. The same are reproduced: 5. I have gone through the facts of the case, Review Order and the Respondent's contentions. I agree with the contentions made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pendent on nature and are thus specific to the port location. In the light of the specifications available, they are so specific in the sense that at no other place these Kolos can be sold or suitable for sale as the conditions prevalent at other place will be entirely different from the place of port for which they are made. As per the Brief Specification of Civil Works in Phase-I Development of Krishnapatnam Port available in the file, apart from creating Berths, Dredging and reclamation and Warehouses and other misc. buildings, Break Waters is one of the activity to be done. For creating Break waters, tidal levels are specified as follows: Chart Datum (CD) = +/- 0.00 M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnel, a sand trap of capacity about 0.7 million cu. me will be created by dredging on the southern side of the south breakwater. Opening between the breakwaters at the entrance to the port is provided keeping in view of safe passage for ships anticipated in the future development. The Breakwater profile consists of geotextile on the seabed, followed by bedding layer 300 mm thick - 75 mm to 150 mm stones: Core material - 10 to 2000 kg stones Toe bedding layer - 100 to 200 kg stones Secondary stone armour layer - 0.2 to 0.3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufactured are not marketable as such. Further, similar goods were manufactured by Visakhapatnam Port Trust and dutiability of these goods were decided by the Hon'ble Apex Court in the case of Board of Trustees Vs CUE [2007 (216) ELT 513 (S.C.)]. Further, in the same case laws that are relied by the appellants, it is clearly said that the concept of 'marketability' is not dependent on the fact whether the items are actually purchased or sold and it is a question of fact to be decided in the facts of each case and there can be no generalization. Hence, the appellants argument that in the case of Board of Trustees Vs. CCE [2007 (216) ELT 513 (S.C)], Visakhapatnam Port Trust is both the manufacturer and user and hence marketabili ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
