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TMI Blog2010 (2) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... Nikobar Islands (ANI for short) for rehabilitating families affected by tsunami. After due process of law, the Commissioner found that appellants had manufactured excisable goods falling under CSH 73089010 at Visakhapatnam and removed for captive consumption in the construction of residential units on the Andaman & Nikobar Islands. Appellants had been engaged for setting up of residential structures by M/s. Unity Infraprojects Ltd., (UIPL). UIPL the main contractor had been awarded the contract by CPWD, for construction of a total of 4335 units of permanent shelters on ANI. As per the tender agreement No. 22, 23 & 24 and the sub-contract dated 8-8-06 between UPIL and the appellant, the appellant was found to have incurred liability of Central Excise duty of Rs. 3,42,19,920/- towards steel structurals and Rs. 5,97,258/- towards scrap manufactured during the material period. 2. In the appeal filed before the Tribunal, impugning the demands and penalties (as well as order of confiscation of certain goods and fine), the following grounds have been raised. The appellants had manufactured and cleared permanent shelters in CKD/SKD condition. Impugned order had wrongly confirmed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty. In the circular No. 456/22/99 dated 18-5-1999, the CBEC had clarified the expression 'site' appearing in a predecessor Notification No. 5/98-C.E., dated 2-6-1998 to include any premises made available for the manufacture of goods by way of a specific mention in the contract/agreement for such construction work, provided that the goods manufactured at such premises were solely used in such construction work only. It is argued that in view of the above clarification to 'site' appearing in a similar context in a similar notification, impugned goods fabricated at the assessees' manufacturing facility situated away from the construction site and used solely in the construction work could not be denied the exemption extended at Sl. No. 64 of Notification No. 3/05 CX. dated 24-2-2005. During hearing the leaned counsel for the appellants submitted that Notification No. 32/05-C.E., dated 17-8-2005 had provided for obtaining refund of the duty paid on the steel items procured for construction of tsunami affected districts, inter alia, on the ANI. Therefore, the appellants had no motive to suppress the fact of construction of tsunami shelters to evade duty due to the Govt. In terms of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (146) E.L.T. 624 (T-Del.)] 4. Learned JCDR appearing for the revenue has reiterated the reasoning and findings contained in the impugned order. It is submitted that the adjudicating authority did not pass an incomplete order as argued by the appellants for the reason that he had not determined the cenvat credit available to the assessee. As per the impugned order the assessee was entitled to cenvat credit of duty paid on the inputs on production of supporting duty paying documents. The impugned order classifying the steel structurals which had acquired distinctly different shapes to suit structural designs of the permanent shelters had correctly found that the items cleared had been manufactured from raw materials like angles tubes, plates etc., following the ratio of the decision of the Tribunal in the case of M/s. Mahindra & Mahindra Ltd., v. CCE, Aurangabad, Chandigarh, Kanpur & Chennai [2005 (190) E.L.T. 301 (Tri.-LB)]. The Commissioner had rightly held that the impugned goods were marketable. The appellants themselves had classified the items under CSH 73089010 and claimed the same to be entitled to exemption under Notification No. 3/05-C.E., dated 24-2-2005. The Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The circular clarified that exemption would still be available if the goods were manufactured solely for the purpose of construction and the premises where the goods were to be manufactured were specified in the contract/agreement. The instant case where the construction agency is forced to undertake the manufacturing operations apparently found not feasible on the island and for the sole purpose of using it in the erection of shelters is prima facie covered by the exemption and Notification No. 3/05-C.E. 6. The items involved are suitable only for erecting particular type of shelters as per the design supplied to the appellants by UIPL on receipt from CPWD. Such materials suitable only for the shelters constructed as per the contract awarded by the CPWD cannot be held to be goods that generally come to the market for being bought and sold. They have no commercial identity. Prima facie these materials are not marketable and therefore not exigible. 7. The Commissioner has ordered that the appellants are eligible for credit of duty paid on inputs provided they are in possession of suitable duty paying documents. From the show cause notice, issued to the assessee, it is se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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