2000 (11) TMI 728 - AT - Central Excise

Issues Involved:
1. Classification and dutiability of Pile Liners.
2. Classification and dutiability of Cutting Edge.
3. Classification and dutiability of Shuttering.
4. Classification and dutiability of Centering.
5. Classification and dutiability of Working Platform.
6. Classification and dutiability of Water Tank.
7. Marketability of the fabricated items.
8. Applicability of the longer period of limitation for demanding duty.
9. Applicability of Exemption Notification No. 61/90.

Detailed Analysis:

1. Classification and Dutiability of Pile Liners:
The department classified Pile Liners as hollow profiles of uniform diameters, used for lining concrete, and considered them as steel tubes and pipes classifiable under heading 7305.90. The appellants contended that Pile Liners are immovable goods as they come into existence when embedded in the earth. The tribunal agreed with the appellants that the Pile Liners, once embedded, are immovable properties and hence not excisable. The adjudicating authority's view that these profiles acquire a distinct status before embedding was found contradictory and unsustainable.

2. Classification and Dutiability of Cutting Edge:
Cutting Edges, manufactured from mild steel plates and used to facilitate entry into the earth, were classified under sub-heading 7308.90. The appellants argued that these are not marketable products and are custom-made for specific structures. The tribunal noted that the department failed to prove marketability and that the demand was time-barred as there was no intent to evade duty. The tribunal concluded that Cutting Edges are not excisable.

3. Classification and Dutiability of Shuttering:
Shuttering, made of MS plates and used as molds for concrete, was classified under sub-heading 7308.40/7308.90. The appellants argued that no new product emerges from the original steel plates, and the burden of proving marketability was not discharged by the department. The tribunal found that Shuttering is not a new product and is not marketable, thus not excisable. The demand was also time-barred, and duty post-20-3-1990 was not sustainable due to Exemption Notification No. 61/90.

4. Classification and Dutiability of Centering:
Centering, used to support Shuttering, was assumed similar to Shuttering. The appellants contended that it is an immovable structure fabricated at the site and not marketable. The tribunal agreed with the appellants, finding that Centering is not marketable and is an immovable structure. The demand was time-barred, and duty post-20-3-1990 was not sustainable due to the exemption notification.

5. Classification and Dutiability of Working Platform:
The Working Platform, a temporary steel structure used in the river, was classified under sub-heading 7308.90. The appellants argued that it is immovable and not marketable. The tribunal found that the Working Platform is an immovable structure and not excisable. The demand was time-barred, and duty post-20-3-1990 was not sustainable due to the exemption notification.

6. Classification and Dutiability of Water Tank:
Water Tanks, used for storage during construction, were classified under heading 7310.00. The appellants argued that these are immovable and not marketable. The tribunal found that Water Tanks are immovable and not excisable. The demand was time-barred, and no intent to evade duty was established.

7. Marketability of the Fabricated Items:
The tribunal emphasized that the burden of proving marketability lies with the department. The items in question were custom-made for specific contracts and not standard marketable products. The department failed to prove marketability, making the items non-excisable.

8. Applicability of the Longer Period of Limitation:
The tribunal noted that the structures were made in full view of the Collector of Central Excise, negating any suppression of facts. The show cause notices did not establish an intention to evade duty, making the invocation of the longer period of limitation unsustainable.

9. Applicability of Exemption Notification No. 61/90:
The tribunal found that duty demanded post-20-3-1990 was not sustainable due to Exemption Notification No. 61/90, which provided relief to the appellants.

Conclusion:
The tribunal allowed the appeals, setting aside the impugned orders and granting consequential relief. The items in question were deemed immovable properties and not excisable, and the demands were time-barred without any evidence of intent to evade duty.

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