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TMI Blog2010 (2) TMI 1032X X X X Extracts X X X X X X X X Extracts X X X X ..... ed at Rs. 10,06,00,000/- giving option to the appellants to redeem the same on payment of redemption fine of Rs. 35,00,000/-. The appellants are having their factory at Mundka, Delhi for manufacture of casting of prefabricated structural components , falling under Tariff Item 6810 91 00 of the First Schedule to the Central Excise Tariff Act, 1985 and other activities related thereto and the same are designed and used for construction of tunnel between Udyog Bhavan and Green Park stations (both excluding) for underground work on Central Secretariat to Qutab Minar Corridor of Phase-II of DMRC Project Contract (BC-16). Such pre-fabricated structural components are removed to the site of construction for use thereof in the construction of tunnel. There is no dispute that the tunnel is non-dutiable, being embedded to the earth, however, it is the case of the Department that the pre-fabricated structural components are the finished products at the intermediate stage of the construction of tunnel and excisable product and therefore liable to the excise duty. The Department, therefore, issued a show cause notice dated 26th August, 2008 requiring the appellants to show cause against demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be contended that the bond already executed is sufficient to take care of the interest of revenue. 5. On the other hand, learned Jt. CDR submitted that the impugned order discloses consideration of the materials on record and, therefore, it cannot be said to be non-speaking order. Further, placing reliance in the order passed by the Tribunal in the matter of Afcons Infrastructure Ltd. v. CCE, Delhi reported in 2008 (232) E.L.T. 274 (Tri. - Del.), it was submitted that the facts of the case in hand are similar to those of Afcons case, only difference being in the name of the components, and the product in the matter in hand being used for tunnel and the parts which were supplied in Afcons case were for the overbridge. 6. The undisputed facts on record apparently disclose that prefabricated structural components manufactured in a separate yard are transported to the staking yard and thereafter they are taken to the underground site for construction of rings which in turn forms the tunnel. 7. In Afcons case, the assessee was required to construct piers at specific points, with pre-cast concrete girders at the site provided by DMRC, by taking those products to the site of constru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e product which weighed 50 metric tones each and had been manufactured in a prisoinoid form for particular purpose. This is apparent from paras 3 and 4 of the said decision which reads thus : 3. Therefore, the principal question involved in this civil appeal relates to exigibility of Cement Concrete Armour Units. At the outset we may state each of these units weight is about 50 metric tones. They are like Tripods which also keep the water calm and tranquil. In order to constitute goods twin tests have to be satisfied, namely, process constituting manufacture and secondly marketability. In the present case the second test of marketability is in issue. It is well-settled that goods are manufactured with the object of being sold in the market. If the goods are not capable of being sold then the test of marketability is not fulfilled. Further, the burden is on the Department to prove whether there is the process which constitutes manufacture and secondly whether the product is marketable. 4. Coming to the facts of the present case we have examined the literature concerning Port Engineering as well as the contract entered into by the Port Trust which indicates that concrete armou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e shape nor the condition in which the article is to be manufactured as also the fact that the product is generally not being bought and sold or has no demand in the market is of no relevancy. 12. In Mittal Engg. Works (Pvt.) Ltd. case while dealing with the question as to whether mono vertical crystallizes are where the goods upon which the excise duty could be levied, it was held thus :- 9. Upon the material placed upon record and referred to above, we are in no doubt that the mono vertical crystalliser has to be assembled, erected and attached to the earth by a foundation at the site of the sugar factory. It is not capable of being sold as it is, without anything more. As was stated by this Court in the case of Quality Steel Tubes (P) Ltd., the erection and installation of a plant is not excisable. To so hold would, impermissibly, bring into the net of excise duty all manner of plants and installations. 10. The Tribunal took an unreasonable view of the evidence. It was the case of the appellants, not disputed by the Revenue, that mono vertical crystallisers were delivered to the customers in a knocked down condition and had to be assembled and erected at the customers fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erusal thereof would reveal that the product in question by no stretch of imagination could be equipment to which the said notification refers to. The relevant portion of the notification reads thus :- All items of equipment including machinery and rolling stock, procured by or on behalf of Delhi Metro Rail Corporation Ltd. for use in : (i) Delhi MRTS Project Phase-I; and (ii) Specified corridors of Delhi MRTS Project Phase-II, comprising of the following :- (a) Vishwavidyalaya - Jahangirpuri; (b) Central Secretariat - Qutab Minar (via All India Institute of Medical Sciences); (c) Shahdara - Dilshad Garden; (d) Indraprastha - New Ashok Nagar; (e) Yamuna Bank - Anand Vihar - Inter State Bus Terminus; and (f) Kirti Nagar - Mundka (along with operational Link to Shahdara - Rithala corridor). 16. Undoubtedly the appellants have placed balance sheet copy on record, however, perusal thereof and taking into consideration the aspects including the current assets and advances, fixed assets, cash and bank balance, we do not find that direction to deposit the amount in terms of the order passed hereunder would cause any finan ..... 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