TMI Blog2004 (9) TMI 690X X X X Extracts X X X X X X X X Extracts X X X X ..... tured and supplied PSC boxes and cement concrete slabs at the yard belonging to the Railways in terms of a contract entered into by them with the Railways. It was alleged that both the above products were chargeable to duty under heading No. 68.07 but the assessee cleared the goods without payment of duty. In the circumstances, show cause notice was issued to the assessee which culminated in the order of adjudication passed by the original authority whereby he has confirmed a duty of ₹ 6,58,899/- being the duty on the articles of cement manufactured and cleared during 8/92 to 5/93 under Rule 9(2) of the CE Rules, 1944 read with proviso to Section 11A(1) of the CE Act, 1944. He has also imposed a penalty of ₹ 25,000/- on the assessee under Rule 9(2) Rule 173Q of the Rules ibid, against which the assessee filed appeal before the Commissioner (Appeals), who by the impugned order partially allowed the appeal, as noted above. Both the assessee and the Revenue are aggrieved by the impugned order in appeal and filed these appeals. 3. Smt Komala Choudhury, learned Consultant appeared for the assessee-appellants referred to the grounds of appeal and submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2001 (130) E.L.T. 894 and TECCO v. CCE reported 2002 (149) E.L.T. 133 wherein it was held that such pre-cast boxes and slabs are eligible for the benefit of exemption under Notification No. 59/90, dated 20-3-90 taking note of Board s circular No. 456/22/99 dated 8-5-99 wherein it was clarified that expression site used in the said Notification No. 59/90, dated 20-3-90 should not be given a restrictive meaning and shall include any premises made available to the manufacturer by way of specific mention in the contract. As regards demand of duty for the longer period, she has submitted that it is settled law by the Hon ble Apex Court as in the case of CCE v.. Chemphar Drugs and Liniments reported in 1989 (40) E.L.T. 276 (S.C.) and in the case of TNHB v. CCE, Madras reported in [1994 (74) E.L.T. 9 (S.C.) = 1994 (55) ECR 7 (S.C.)] that unless it is shown that the assessees have deliberately withheld any information, from the department, the longer period of limitation in terms of the proviso to Section 11A(1) cannot be applied. She in the circumstances prayed for allowing their appeal and rejection of the Revenue appeal. 4. The Revenue has come in appeal against the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .E. dated 2-6-1998 may not be given restrictive meaning and shall include any premises made available to the manufacturer of goods falling under heading 68.07 of the Schedule to the CETA, 1985 by way of specific mention in the contract for such construction work, provided that the goods manufactured at such premises are solely used in the said construction work only. In the present case the condition stipulated in the Notification No. 59/90 is satisfied, inasmuch as the goods are manufactured at the site of the Railways in terms of the contract and are solely used in terms of the contract. We find that the Commissioner (Appeals), has proceeded to hold against the appellants on the ground that the goods are marketable. This finding cannot be countenanced, firstly for the reason that the goods have been manufactured according to the specific designs and specifications provided by the Railways to meet their own requirement for construction of minor bridges. Neither can it be used for others, nor are they capable of being sold elsewhere. These segments were placed side by side fixed to the earth and fused with each other by epoxy glue to form the bridge. It is seen from the records tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abricated into structure and becoming immovable in character and not capable of being marketed, cannot be treated as goods for the purpose of excise duty. Tribunal in the case of National Asphalt Prod Construction Co .v. CCE, Trichy reported in 1999 (105) E.L.T. 87 has held that sand blocks used to construct ash bunds, do not conform to any standard shape or size like normal bricks or concrete cement blocks, the said blocks are used in a works contract and thereby not sold, hence they are not called goods and the burden to prove its marketability is on the department and since the burden has not been discharged, the goods are not dutiable under heading 68.07. Further, the Tribunal in the case of Delhi Tourism Transportation Development Corpn. v. CCE, New Delhi reported in 1999 (114) E.L.T. 421 has held that benefit of Notification No. 59/90-C.E., dated 20-3-1990 vide Serial No. 7 of the table thereto, is admissible to cast beam/girders. This decision has been followed by the West Regional bench of the Tribunal in the case of Raghunath Ramchandra Shanbhag Asia Foundations Constructions Ltd. v. CCE, Mumbai-VII reported in 2004 (178) E.L.T. 488 (T) = 2004-TIOL-455-CESTAT-MUM. We ..... X X X X Extracts X X X X X X X X Extracts X X X X
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