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TMI Blog2001 (9) TMI 837X X X X Extracts X X X X X X X X Extracts X X X X ..... ey pray that confirmation of demands in all the respective orders are required to be set aside and appeals be allowed. 3. Appeal No. E/297/89-B1 arises from OIO No. 7(73)C.E.-11A/88/Collr.41/88, dtd. 27-10-98 passed by the Commissioner of Central Excise Customs, Bhubaneshwar. By this order, he has rejected the plea of the assessee that various structurals, steel items like section, wind ties, purlins, portals, frame work, columns, crane gantries, surge grinders, bracings, monorails, floor beams, lifting beams, side runners, roof and wind girders, platform staircases, ladders, stoppers, breakers, supports for equipments etc., for electrical substation and storage of material and goods as mentioned are not excisable goods and since appellants had not paid duty and cleared it, requiring the department to initiate proceedings by issue of show cause notice. On final adjudication, he confirmed the terms of the show cause notice as well as duty amount of Rs. 76,505.40 under Rule 9(2) of Central Excise Rules, read with Section 11A besides penalty of Rs. 76,000/- under Rule I73Q of C.E. Rules. He has rejected their plea pertaining to valuation as well as Modvat claim taken as an alterna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15-4/91/NIYAY/1/4424, dated 6-2-92 passed by CCE, Raipur (M.P). In this order, he has again upheld the department s contention that assessees were manufacturing cable tray supports , which required to be classified under Chapter Sub-heading 7308.90 of CETA and as a result duty for the period 1-8-86 to 28-2-88 for an amount of Rs. 9,66,470.13 was demanded besides imposition of penalty of Rs. 1 lac. 7. Ld. Senior Counsel Shri C. Natarajan appeared for the appellants in all the four appeals and at the outset it was fairly pointed out that all these appeals were awaiting Apex Court judgment in the case of Elecon Engineering v. Collector - 2001 (132) E.L.T. (A89) (S.C.) which had been appealed by the Revenue. The Tribunal in Elecon Engineering v. Collector - 1999 (107) E.L.T. 337 (Tribunal) case had categorically laid down that all these items are not goods as known in the market and they are not excisable. However, a batch of appeals were taken up by the Constitutional Bench of Five Hon ble Judges of the Apex Court in the case of CCE, Jaipur v. Man Structurals Ltd., [2001 (130) E.L.T. 401 (S.C.)] remanded the matter to the Tribunal for de novo consideration on the ground that the is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd punching as per the design and specifications and galvanizing and duty paid on steel ingots, plates and sheets assembled into the transmission towers at site was remanded for de novo consideration in the light of the Apex Court judgement rendered in CCE, Jaipur v. Man Structurals Ltd. and other noted judgements cited above, requiring verification of facts on the excisability of each item by the original authority as such facts and evidence was not available on record. 9. Ld. Senior Counsel submits that although they have no objection for remand, he would still in his opinion, submit that in so far some of the items like cable tray supports, the facts are clear in as much as the items are running in 100 mts. length and it only supports cable trays on which the cable is made to move for transmission purpose. They are not in the nature of goods, as they are not marketable and cannot be treated so. He places before us a photograph of the cable tray support which shows huge cable length running into several 100 mts. which is fixed on a movable structures and becomes part of it and cannot be treated as goods. He contends that all the above submissions had been taken by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that he has no objection for remand as similar matters have been remanded by the Tribunal. But, however, the authorities be given direction to re-adjudicate in the light of Apex Court judgment already noted in CCE, Jaipur v. Man Structurals Ltd. (supra) that the cable tray supports are also goods and does not agree with the argument raised by the ld. Senior Counsel on all the points. 11. On a careful consideration of the submissions, we notice that the Constitutional Bench on this issue in respect of various items and has remanded the case for de novo consideration to reconsider Revenue s pleas as submitted by ld. DRs before us. The relevant portion of the judgment has already been extracted above. 12. We notice that in each of the case, there is a requirement for appreciation of facts. The entire facts with regard to item being goods or not; whether they are known in the market and whether they are in marketable stage and whether appellants held bona fide belief and they had no intention to evade duty are all facts which should be appreciated by the respective original authorities. We do not have all the material facts before us to give our finding. We have noted each of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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