9911796707
TMI Blog2000 (11) TMI 728X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing items and the contention of the appellants are also indicated as below :- Items/Goods involved Findings in the impugned Order - Itemwise Appellants Contention Pile Liner These are hollow profiles of uniform diameters used for the purpose of lining the concrete to provide additional protection to it. Pile Liners consist of one or more segments and each segment is a hollow profile of specified length and diameter. Their hollow profiles are nothing but tubes and pipes of steel. Relied on HSN pages 1016 and 1017. Before they are embedded into the earth, they have already acquired status of a distinct identifiable product. 1. Duty was demanded in the SCN on Pile Liners and not on segments thereof. It is not denied that Pile Liners, as a whole, came into existence while it is embedded in the earth. Hence, the Pile Liners are immovable goods. The reasons given on page 8 of the order while dropping the demand on well liners will also apply to Pile Liners. 2. The individual segments of hollow profiles are not tubes or pipes of heading 7305.90. 3. In any case, no evidence has been produced to prove that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny way not sustainable in view of Exemption Notification No. 61/90, dated 20-3-1990. Centering No decision in the order. This has been assumed to be similar to shuttering. 1. It is an immovable structure which is fabricated at site after embedding the vertical members into concrete foundation in the river bed. 2. It is not marketable as it has no commercial identity and is incapable of being bought to the market for sale. 3. Tariff Entry - 7308 was introduced w.e.f. 1-3-1988, whereas duty has been demanded under their heading from February 1987. 4. Demand is time barred entirely for the first SCN and partly for the second (month of February, 1989) No allegation or finding that there was an intention to evade payment of duty. 5. Duty demanded after 20-3-1990 is any way not sustainable in view of Exemption Notification No. 61/90 dated 20-3-1990. Working Platform Is a steel structure put up in the middle of the river to facilitate stationing of men materials. It comprises of girders, plates angles. The girders are first driven into the river beds. Angles plates are then fitted o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants and Shri B.K. Choubey Ld. DR appeared for the department. 4. Shri V.K. Jain argued that the duty demand on the various items which are described, alone the same could not be demanded at all in law. He stressed the point that all these items are only immovable properties. He stated that for levy of excise duty the primary ingredient is that the item should be a movable property. Another important ingredient stressed is that it should be manufactured out of the raw materials. Here Shri V.K. Jain states that all these items under consideration could only be treated as immovable properties. He described to us as to how the department has proceeded on wrong line of approach. He states e.g. in respect of Pile Liner which consist of various segments of hollow profiles of uniform diameters. The show cause notice does not propose to levy duty on each segment manufactured, but it proceeds to levy duty on the final product namely Pile Liner which is nothing but an immovable property. He states the adjudicating authority has failed to give a finding as to how longer period of limitation could be invoked in these cases. He elaborately described with the help of photograph, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nside river. It is made of girders driven inside bottom of the river erection, angles used for tracings and plates or wooden sleepers placed on top for movement of machines and material up to the desired point of construction. After completion of the work it is dismantled into original form of H-Piles, girders, angles and plate etc. the structural steel items. Water Tanker : Are fabricated at the storage spot to store water which is used for the construction purpose. The height of these storage tanks are kept higher than the bridges height to ensure the regular delivery of water of every point of bridge by gravity and after completion of project completely dismantled, into plates and transferred to other projects as and when required. The each of the item when we look into the same one common thread seems to run namely the items are embedded to earth. The show cause notice does not proceed on the basis of charging to duty when individual segments which make either PILE LINER or SHUTTERING. In fact show cause notice dated 13-9-90 states that the items manufactured by the Corporation for the period from February, 1989 to May, 1990 are given below and the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of those items. 7. In this connection with marked ability Shri B.K. Choubey invited our attention to the findings of the adjudicating authority at page 8 are as follows : - A perusal of the description of the products mentioned above will reveal that all their items except well liners are separately identifiable and specifically classifiable, they possess identity quite independent of the M.S. Plates, sheets, angles and channels and have their own nomenclatures. Even though they are used in or in relation to the construction of the bridge, they can never be treated as part of the bridge itself. The lingering doubt about the dutiability of immovable structures, need not cast their shadow on the excisability of these items, in view of the fact that these items cannot be treated as immovable. Various judicial pronouncements cited by the party in support of their argument that immovable property cannot be charged to duty, have no relevance in the circumstances discussed above. It is observed that considerable emphasis has been placed by the party on the argument that the goods which they have manufactured, cannot be called goods within the meaning of Central Excises and Salt Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concrete is placed and over the cutting edges. Pile Liners forms Assistant Commissioner (sic) when it is the fact that these two materials are never removed or removable. We cannot comprehend as to how the adjudicating authority treated these two items as immovable property, when he holds Well Liners as an immovable property. In fact in internal page 5 of the order dated 27-10-94 (Appeal No. E/4285/95), the adjudicating authority held as under : The arguments of the party that these pile liners become immovable property once they are embedded to the earth, is no doubt, acceptable . Having held so, he finds as follows : But the fact remains that before these hollow profiles are embedded into the earth, they have already acquired the status of a distinct identifiable product consequent to the processes of cutting to size, bending and welding of steel plates. It is apparent that the processes of cutting to size, bending and welding of steel plates, bring into existence a different hollow profiles which become chargeable to duty. The moment the hollow profiles are obtained, such profiles are chargeable to duty and are a different commodity from the steel plates, which were use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise, Baroda [1997 (95) E.L.T. 239 (Tribunal)]. Thus, we are citing the above case for the preposition that the test propounded by the Supreme Court in the above cited case. The fact whether the goods are movable or immovable has to be decided in each and every case. This is what the Supreme Court said to the case of Duncans Industries Ltd. v. State of U.P. Ors. [2000 (88) ECR 19 (S.C.)] at page 25 where the Supreme Court held that - The question whether a machinery which is embedded in the earth is movable property or an immovable property, depends upon the facts and circumstances of each case. Primarily, the court will have to take into consideration the intention of the parties when it decided to embed the machinery whether such embedment was intended to be temporary or permanent . Here for all the items before us the individual segment of the finished product are fixed to earth in a permanent way. Each finished product has to be made for that particular contract. It is another matter that if the appellant has requested a job worker to make these items and whether the action of the job worker in creating said structures would amount to manufacture or not. Because ..... X X X X Extracts X X X X X X X X Extracts X X X X
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