9911796707
TMI Blog2009 (3) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... ed SDR appeared for the revenue. 3. We heard both sides. 4. The issue arises out of the de novo proceedings ordered by this Bench in the Final Order No. 2073/2004, dated 29-12-2004 which originally arose out of Order-in-Original No. 21/1999. 5. The appellants entered into a contract with Bharat Heavy Plates and Vessels Limited (M/s. BHPV), Visakhapatnam. In fact BHPV had entered a contract with M/s. Nagarjuna Fertilizers and Chemicals Limited (NFCL) for the supply and erection of primary reformer package at the latter site. BHPV in turn had entered into a sub-contract with the appellant, M/s. Petron Engineering and Constructions Ltd., Mumbai to get the work done of fabrication and erection of primary reformer package. The case of the dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these parts fabricated would not have attracted levy of excise duty in terms of the above case laws at 9.1 (a to k) above. Since M/s. BHPV itself would have contracted to supply, erect and commission the primary reformer as the price paid by NFCL is for the entire primary reformer. NFCL would not be interested in these six fabricated items alone, even though they are the components of the primary reformer as they have placed an order for the entire primary reformer with BHPV. BHPV's responsibility starts from the right from conception stage to the final commissioning viz., right from the designing, drawing, engineering of the project including its work, drawing and designing of each and every of its most minutest part and their specificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d duties, such as Excise Duty and Sales Tax. The scope of the contract is for supply of several materials. The value is Rs. 1,24,30,000/-. Then, the second point is site fabrication, erection and testing. So, this relates to the erection of the primary reformer package. Even though, the work is originally contracted by NFCL to BHPV, in turn BHPV passed on the entire work to the appellant. In so doing, the appellants are required to supply certain materials, fabricates certain materials and also along with the materials or items supplied by BHPV and NFCL, they should do the complete erection. That means the appellant's work is the erection of the primary reformer package. It is not limited to manufacturing few items and selling the same to B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch and they are made during the course of erection and fabricated piece by piece and fitted in the place for the primary reformer, which is finally an immovable property. Therefore, they are not excisable. A large number of case laws have been relied on by the appellant in this appeal. (i) ABB Industries v. Commissioner of Central Excise, Visakhapatnam - 2006 (198) E.L.T. 79 (Tri.-Bang.). (ii) Afcons Infrastructure Ltd. v. Central Excise, Visakhapatnam - 2006 (197) E.L.T. 247 (Tri.-Bang.). (iii) Dodsal Pvt. Ltd. v. Central Excise, Bangalore - 2006 (193) E.L.T. 518 (Tri.-Mumbai). (iv) B.P.L. Mobile Communication Ltd. v. Commissioner of Central Excise - 2006 (198) E.L.T. 226 (Tri.-Mumbai). (v) KCP Limited v. Commissioner of Central Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Avtar Singh & Co. v. Commissioner of Central Excise, Visakhapatnam - 2007 (213) E.L.T. 105 (Tri.-Bang.). (xxi) Larsen & Toubro Ltd. v. Commissioner of Central Excise, Pune-II - 2007 (211) E.L.T. 513 (S.C.). (xxii) Section 37B - Order No. 58/2002-CX., dated 15-1-2002 issued from F. No. 154/26/99-CX.4 Along with these citations, the Section 37B Order dated 15-1-2002 issued by the CBEC has also been relied on. Therefore, what emerges out of the activity of the appellant is a primary reformer package. It is another thing that certain parts of the primary reformer package are fabricated by the appellant. But, we are convinced from the records available that these are fabricated at the site and they are formed piece by piece and then fitted. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot have an independent existence as held by the learned Commissioner. After seeing the photographs, we are of view that the hand operated dampers, expansion joints, steel chimneys, heaters, platforms and ladders are all part of the primary reformer and cannot be called as goods which are marketable. In other words, they have emerged as immovable property. 5.6 Moreover the appellants have also pleaded that longer period in the present case is not applicable and they were under bona fide belief that the activity carried out by them would not amount to manufacture. They have pleaded that mere non-registration or non-payment of duty and consequent, non-compliance of formalities and procedures under Excise laws, is not a sufficient reason ..... X X X X Extracts X X X X X X X X Extracts X X X X
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