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TMI Blog2001 (10) TMI 425X X X X Extracts X X X X X X X X Extracts X X X X ..... jesh Kumar, ld. Advocate, submitted that they entered into a contract with M/s. Nagarjun Fertilizers Company Ltd. (M/s. NFCL) for erection of circulating water cooling system in July, 1989; that the Collector under the impugned order has demanded the Central Excise duty and imposed penalty holding that the appellants had manufactured the MS pipes; that they had not manufactured any pipes; that what they have manufactured was cylindrical hollow fabricated item; that these cylindrical hollow items are very big in size as the diameter ranges from 700 mm to 1600 mm; that such a huge product is not capable of being brought to the market for being bought and sold; that a product up to a particular measurement may be 'goods' as it is capable of be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve specifically mentioned that their work included only carrying out fabrication of circulating cooling water piping system and the job undertaken by them was exclusive to customer's requirement which would not be available in the market for being bought and sold; that the inspector under letter dated 16-7-1991, after considering their submissions, withdrew the direction of not carrying out of any further work; that this shows that the Department was fully aware of the activities undertaken by them and larger period of limitation cannot be invoked. 2. Shri M.P. Singh, ld. DR submitted that the demand of duty has been confirmed only in respect of fabrication of MS Pipes which were manufactured out of the raw materials, namely, MS plate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low item is nothing but a terminology used in technical terms to describe the pipe only. Regarding marketability of the product, ld. DR relied upon the decision in the case of JST Engineering Services v. CCE, Jamshedpur [2001 (133) E.L.T. 350 (T) = 2001 (98) ECR 265] wherein the Tribunal, applying the test laid down in the case of Municipal Corporation of Bombay v. IOC [AIR 1991 SC 686] and Triveni Engineering Industries v. CCE [2000 (120) E.L.T. 273 (S.C.)] held that the steel pipes, the welding of which was done after laying down in the trenches are excisable products. He contended that the present case stands at a better footing than JST Engineering case as therein the pipes were welded insight the trench which is not so in the present m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestigation. 4.1 We have considered the submissions of both the sides. We do not find any substance in the submissions of the learned Advocate that the Appellants had not fabricated any pipes. It is apparent from the Work Order that it pertained to erection of circulating cooling water piping and according to Terms of Payment, payment was to be made as under : "(a) For Fabrication of Pipes : < 80% against plate rolling, longitudinal weld and application of primary paint. (b) For Erection of Pipes : < 45% against fabrication and fittings; laying of pipes and welding of supports, < 25% after painting < 10% after Hydraulic test." 4.2 It is thus evident that the Appellants fabricated pipes, which they may call cyli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nufactured by independent contractors from whom it purchased them. This plea itself... is adequate to demolish the case of the appellant." In the JST Engineering Services case also the pipes, laid down in trenches for power plant, were held to be marketable. 5. We agree with the learned DR that the extended period of limitation is invokable inasmuch as the fact of fabrication of pipes was suppressed from the Department and the goods were manufactured and removed without obtaining Central Excise license, without observing formalities and without payment of duty. The correspondence exchanged between the Department and the Appellants, as pointed out by the learned DR, is subsequent to the period for which demand of duty has been confirme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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