2006 (3) TMI 365 - AT - Central Excise

Issues Involved:

1. Excisability of Prestressed Concrete Girders (PSCG).
2. Classification under CET sub-heading 6807.90.
3. Applicability of Notification No. 59/90-C.E.
4. Invocation of the extended period of limitation under Sec. 11A(1) of the Central Excise Act.
5. Confiscation under Rule 173Q read with Rule 226 of the Central Excise Rules.
6. Imposition of penalty under Sec. 11AC.

Issue-wise Detailed Analysis:

1. Excisability of Prestressed Concrete Girders (PSCG):

The Tribunal examined whether the PSCG, which were cast in separate yards and then transported and fixed on the bridge, were excisable goods. The Larger Bench in the case of *Asian Techs Ltd. v. CCE, Pune* [2005 (189) E.L.T. 420 (Tri-LB)] had previously held that PSC girders manufactured in casting yards and then removed for launching on piers are excisable goods under Heading 68.07 of the CETA, 1985. This decision was consistent with the Apex Court's ruling in *A.P. State Electricity Board v. Collector* [1994 (70) E.L.T. 3 (S.C.)]. The Tribunal reaffirmed this position, holding that the PSCG in question were indeed excisable goods.

2. Classification under CET sub-heading 6807.90:

The Tribunal upheld the classification of the PSCG under CET sub-heading 6807.90, based on the precedent set by the Larger Bench in *Asian Techs Ltd.*, which classified similar items under Heading 68.07. Additionally, the Tribunal referenced the decision in *Mahindra & Mahindra Ltd. v. CCE, Aurangabad* [2005 (190) E.L.T. 301], which classified parts of iron/steel structures under Heading 73.08, further supporting the classification of PSCG under 6807.90.

3. Applicability of Notification No. 59/90-C.E.:

The Tribunal found that the benefit of Notification No. 59/90-C.E. was not available to the appellants. This conclusion was drawn from the Larger Bench decision in *Asian Techs Ltd.*, which did not grant the benefit of this notification for similar goods. The Tribunal concluded that the PSCG did not qualify for the exemption under this notification.

4. Invocation of the Extended Period of Limitation under Sec. 11A(1) of the Central Excise Act:

The Tribunal addressed the issue of the extended period of limitation, noting that the appellants did not disclose their manufacturing activity. The plea of bona fide belief based on the Tribunal's decision in *Aruna Industries v. Collector* [1996 (25) E.L.T. 580] was rejected. The Tribunal distinguished the *Aruna Industries* case, which involved fabrication at the construction site, from the present case where the PSCG were manufactured in a casting yard and then moved to the site. The Tribunal upheld the invocation of the extended period of limitation due to suppression of facts by the appellants.

5. Confiscation under Rule 173Q read with Rule 226 of the Central Excise Rules:

The Tribunal upheld the confiscation of the PSCG under Rule 173Q read with Rule 226 of the Central Excise Rules. The appellants were given the option to redeem the confiscated goods on payment of a fine of Rs. 3 lakhs. The Tribunal found that the confiscation was justified due to the appellants' failure to comply with the excise regulations.

6. Imposition of Penalty under Sec. 11AC:

The Tribunal upheld the imposition of a penalty equal to the duty under Sec. 11AC of the Central Excise Act. The penalty was deemed appropriate due to the appellants' suppression of facts and non-disclosure of their manufacturing activities, which justified the imposition of the penalty.

Conclusion:

The Tribunal upheld the impugned order confirming the duty demand of Rs. 21,22,271/- on the PSCG, along with interest and penalty. The appeal was rejected, affirming the excisability and classification of the PSCG under CET sub-heading 6807.90, the inapplicability of Notification No. 59/90-C.E., the invocation of the extended period of limitation, the confiscation of the goods, and the imposition of the penalty.

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