9911796707
TMI Blog2001 (9) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to M/s. Genelec Ltd. for fabrication and erection of steel cable racks in their Ropar Thermal Power Plant, and the latter awarded sub-contract thereof to M/s. Bee Aar Engineers Erectors, the appellants herein. A copy of the work order given by M/s. Genelec Ltd. to the appellants is available on record, which shows that the work was one of fabrication and erection (at the customer s site) of steel cable racks of specified size and the same included painting and transportation of steel from PSEB store to Genelec store also. According to the terms and conditions of the contract, the welding machine required for the job would be provided by the appellants, the shearing machine for cutting purposes would also be provided by the appellants a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w cause notice dated 14-11-1990, demanded duty of Rs. 3,41,220/- on the structurals fabricated by the appellants at the PSEB site, taking a view that the said goods had resulted from a process of manufacture and hence were excisable and, further, that the appellants were the manufacturers thereof. The notice also proposed to impose penalty on the appellants for alleged violation of rules. The notice was contested. In the adjudication of the dispute, ld. Additional Collector upheld the Department s view and confirmed the demand of duty against the party and imposed on them a penalty of Rs. 80,000/-, as per order dated 2-5-1991. It is this order that is under challenge before us. 4. Ld. Counsel Shri J.P. Kaushik for the appellants submits t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the Tribunal s Larger Bench decision in Srichakra Tyres Ltd. Ors. v. CCE, Madras [1999 (108) E.L.T. 361 (T) = 1999 (32) RLT 1 CEGAT]. Regarding the relevant date for charging duty, ld. Counsel submits that the show cause notice does not mention any such date. He submits that any demand ought to have been raised on the basis of the rate of duty prevailing either on the date of actual removal of the goods or on the date on which the demand notice was issued. Counsel submits that, since the date of actual removal was not disclosed in the show cause notice, the only option available to the Deptt. was under sub-rule (5) of Rule 9-A of the Central Excise Rules to raise demand at the rate in force on the date of the show cause notice (14-11- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turer of the goods. In this connection, ld. SDR has relied on the decision of the Tribunal in the case of Kerala State Electricity Board v. Collector, [1990 (47) E.L.T. 62 (T)] which has been affirmed by the Supreme Court. Therefore, according to ld. DR, both the issues, one relating to manufacture , and other relating to manufacturer were decided correctly by the adjudicating authority and the present appeal requires to be rejected. Referring to the plea of the Counsel regarding the relevant date for charging duty on the goods, ld. SDR submits that duty has correctly been charged at the rate in force during the period of execution of the contract. There being no dispute with regard to such period, the demand as confirmed by the adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor s (that is, the appellants ) character of manufacturer of the goods. This Tribunal has settled this position of law in very many cases and the same need not be disturbed. Having examined the findings of the adjudicating authority on excisability of the goods, we find that, the authority has rightly found that the structurals in question had resulted from manufacture and that the same was undertaken by the appellants. However, for deciding the excisability of the goods, manufacture alone is not sufficient. It has to be established that the goods are commercially identifiable and marketable. We observe that this aspect of excisability has not been considered at all by the adjudicating authority. In the case of Man Structurals, Hon b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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