2010 (2) TMI 1032 - AT - Central Excise

Issues Involved:
1. Whether the order passed by the Commissioner is a non-speaking order.
2. Whether the pre-fabricated structural components are excisable and marketable.
3. Applicability of Notification No. 6/2006 and Notification No. 47/2006 for exemption.
4. Financial hardship claim by the appellants for waiver of the duty amount.

Detailed Analysis:

1. Non-Speaking Order
The appellants contended that the Commissioner's order is a non-speaking order, failing to address relevant facts and submissions. The Tribunal found this contention without substance, noting that the Commissioner had considered the main issue of marketability in detail, referencing various decisions relevant to the issue. The impugned order disclosed consideration of materials on record, and thus, could not be deemed non-speaking.

2. Excisability and Marketability of Pre-Fabricated Structural Components
The Department argued that the pre-fabricated structural components are excisable as they are finished products at the intermediate stage of tunnel construction. The Tribunal referenced several cases:

- Afcons Infrastructure Ltd. v. CCE, Delhi: Similarity in facts was noted, where pre-cast concrete girders were deemed excisable.
- Mahindra and Mahindra Ltd. and Asian Techs Ltd.: The Tribunal relied on these cases to affirm the marketability of the components.
- A.P. State Electricity Board case: The Supreme Court's decision on marketability was considered, emphasizing that a product does not need multiple consumers to be marketable.
- Sonic Electrochem (P) Ltd.: The essence of marketability is the commercial identity of the articles known to the market for being bought and sold, irrespective of general demand.
- Mittal Engineering Works (Pvt.) Ltd.: The Tribunal distinguished this case, noting that the assembly and erection at the customer's site indicated non-marketability.
- Hvac Systems (Pvt.) Ltd.: The Tribunal found that ducts fabricated along with immovable property were not excisable, which was not applicable to the current case.

The Tribunal concluded that the pre-fabricated structural components manufactured and transported for tunnel construction are marketable and excisable.

3. Applicability of Notification No. 6/2006 and Notification No. 47/2006
The appellants argued that the components should be exempt under these notifications, which refer to "equipment" for the Delhi Metro Rail Corporation (DMRC) projects. The Tribunal found that the term "equipment" in the notifications could not include the pre-fabricated structural components. The notifications specifically listed items of equipment, machinery, and rolling stock, which did not encompass the components in question.

4. Financial Hardship Claim
The appellants claimed financial hardship, supported by their balance sheet. The Tribunal reviewed the balance sheet and concluded that the appellants' financial condition did not justify a total waiver of the duty amount. The Tribunal balanced the interest of the Revenue and the appellants' financial position, directing the appellants to deposit Rs. 90,00,000/- within twelve weeks, while waiving the remaining amount of duty, interest, and penalty until the appeal's disposal.

Conclusion
The Tribunal found no merit in the claim that the Commissioner's order was non-speaking. It upheld the excisability and marketability of the pre-fabricated structural components, denied the applicability of the exemption notifications, and directed a partial deposit considering the appellants' financial position. Compliance was extended to four months.

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