2013 (4) TMI 159 - AT - Central Excise

Waiver of pre-deposit of duty, Interest & Penalty - Classification - manufacture - cutting or drilling holes, GI pipes remain GI pipes and by bending the pipe - Held that - it cannot be said that the appellant has manufactured a new product as by cutting or drilling holes, GI pipes remain GI pipes and by bending the pipe the product remains the same except that its shape is changed. - In view of the stay order passed by the Tribunal in the case of Srihari Greenhouse Pvt Ltd (2011 (12) TMI 353 - CESTAT, Mumbai), pre-deposit of dues are waived for hearing of the appeal. As the Commissioner (Appeals) has not decided the issue on merits and dismissed the appeal for non compliance with the condition of pre-deposit, the impugned order is set aside and the matter is remanded to the Commissioner (Appeals) to decide the appeal on merits without insisting pre-deposit and after affording a reasonable opportunity to the appellant - Appeal is allowed by way of remand

Summary

Issues:
Waiver of pre-deposit of duty, interest, and penalty for manufacturing and clearing green houses under Chapter Heading 94060019 of the Central Excise tariff.

Analysis:
The appellant filed an application seeking waiver of pre-deposit of duty amounting to Rs.57,87,905/-, interest, and penalty. The demand was confirmed by the adjudicating authority on the basis that the appellant was involved in manufacturing and clearing green houses classified under Chapter Heading 94060019 of the Central Excise tariff as pre-fabricated buildings. The Commissioner (Appeals) directed the appellant to deposit Rs.32.00 lakhs for the appeal hearing, which the appellant failed to comply with, leading to the dismissal of the appeal without delving into the merits. The appellant contended that a competitor, in a similar case, had been granted a waiver of pre-deposit by the Tribunal, and therefore, requested a similar treatment based on a stay order passed by the Tribunal.

The revenue argued that the appellant was fabricating the green houses in their factory and clearing them, making them liable to pay duty as manufacturers of pre-fabricated buildings. However, the Tribunal, in a previous case involving a competitor, had waived the pre-deposit of dues confirmed on similar grounds. The Tribunal found that the appellant supplied raw materials for constructing green houses, with certain activities like cutting, drilling, and bending GI pipes, which did not amount to manufacturing a new product. The erection and commissioning of the green houses were done at the client's site, involving civil work, making the structures immovable goods. The Tribunal held that the appellant had made a strong prima facie case for waiver of pre-deposit, as the materials supplied did not constitute a pre-fabricated building.

Based on the stay order passed by the Tribunal in the previous case, the Tribunal in the current matter waived the pre-deposit of dues for the appeal hearing. The Commissioner (Appeals) was directed to decide the appeal on merits without insisting on pre-deposit and after providing a reasonable opportunity to the appellant. Consequently, the appeal was allowed by way of remand, setting aside the impugned order and remanding the matter to the Commissioner (Appeals) for a decision on the merits without the requirement of pre-deposit.