2008 (5) TMI 553 - AT - Central Excise

Summary

Issues involved: Determination of excisability of pre-fabricated structural components, waiver of pre-deposit and stay application.

Summary:
The Appellate Tribunal CESTAT, New Delhi, considered the case where the appellant was required to pre-deposit a significant amount of excise duty, redemption fine, and penalty to maintain an appeal under Section 35F of the Central Excise Act. The appellant, a civil contractor, was involved in the construction of elevated viaduct and stations for the Delhi Metro Rail Project. The dispute centered around the excisability of pre-fabricated or pre-stressed structural components or girders used in the construction.

It was established that the appellant's activities resulted in the manufacture of goods falling under a specific chapter sub-heading of the Central Excise Tariff Act. The appellant argued that the manufacture of girders did not meet the test of marketability as required by the Central Excise Act. The appellant contended that the girders were not sold but were part of a turn-key contract and were location-specific, thus not marketable.

The Revenue, however, argued that actual sale of goods was not essential for marketability, citing previous Tribunal decisions. The Tribunal considered the requirement of pre-deposit and the likelihood of success in the appeal. It was noted that the goods manufactured by the appellant appeared to be excisable goods, and the key consideration was whether they satisfied the test of marketability.

The Tribunal referred to various legal precedents regarding marketability, emphasizing that the commercial identity of the article known to the market for buying and selling was crucial. Ultimately, the Tribunal found in favor of the Revenue, stating that the girders, although tailor-made for a specific location, were marketable as DMRC was the obvious buyer. The Tribunal also cited previous decisions supporting the excisability of similar manufactured goods.

Consequently, the Tribunal directed the appellant to deposit a specified amount within a given timeframe, with the balance of the pre-deposit being waived pending the appeal's disposal. The decision was made based on the lack of a prima facie case in favor of the appellant regarding the complete waiver of pre-deposit.