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TMI Blog2012 (9) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... . The appellant were not paying any duty or pre-fabricated segments made out of cement and steel and launching trusses. The Department were of the view that by non payment of duty, the Appellant have contravened various provisions of Central Excise Act 1944 and the rules made thereunder, as whole pre-fabricated segments are chargeable to duty under sub-heading 68109100, the launching trusses are chargeable to duty under heading No.8425 of the Central Excise Tariff. For this reason, certain quantity of pre-fabricated segments and launching trusses found at the work site were placed under seizure. Subsequently, the Commissioner, Central Excise, Delhi-I vide Order-in-Original No.13/09 dated 11.5.2007- (a) Confirmed the duty demand of Rs.2,72,74,40/- in respect of pre-fabricated segments and teaching trusses under proviso to Section 11 A(1) of Central Excise Act, 1944, along with interest on it under Section 11 AB ibid: (b) Imposed penalty of Rs.2,72,74,400/- on the Appellant under Section 11 AC ibid; (c) Imposed penalty of Rs.50 Lakhs on Shri B.K. Sinha, Dy. General Manager of the Appellant Company under Rule 26 of Central Excise Rules, 2002; and (d) Ordered confiscation of 810 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if at all it can be said to have been manufactured, it would be classifiable under sub-heading 73084000, that on account of its very limited mobility, it can not be said to be "goods" and hence it is not excisable, that the burden of proving its marketability is on the department, but no evidence in this regard has been produced, that in this regard he relies upon the judgements of the Apex Court in case of Triveni Engineering & Industries Ltd - Vs. CCE reported in 2000 (120) ELT 273 (SC) wherein it was held that since Turbo alternator can not be moved without dismantling into components, its installation or erection at site does not result in emergence of any excisable goods and in case of CCE Vs. Thyssenkrupp Industries India Pvt. Ltd. reported in 2006 (199) ELT A 128 (SC) wherein it was held that rail mounted stackers assembled at site having very limited mobility are not marketable and hence not excisable, that these judgements are squarely applicable to the facts of this case, that applying the criterion for "goods" in the Apex Court's judgement in case of Municipal Corporation of Greater Bombay Vs. Oil Corporation reported in 1991 Suppl (2) SCC-18 launching trusses cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 84 are "capital goods" as defined under Rule 2 (a) of Cenvat Credit Rules, 2004 and since the same have not been used for manufacture of any excisable goods, the same are not eligible for captive consumption exemption under notification no.67/95-CE dated 16.03.1995. According to appellant, the launching trusses with very limited mobility and location specific design, are not marketable and hence, are not excisable and even if the same are treated as excisable goods, the same being structures of iron & steel would be classifiable under 7308 4000 and in that case, would be fully exempt from duty under notification no. 3/05-CE, as same have been fabricated at site for use in construction work at such site. 6. Coming first to the question of classification, we find that the launching trusses are trusses, which are steel structures fabricated from structural steel, with sophisticated equipment, moving forward on bridge piers span by span and are used for placing pre-fabricated segments on the piers. 6.1 Heading 8425 of the Central Excise Tariff covers - "Pully tackles and hoists, other then skip hoists; winches and capstans, Jacks". The Commissioner in his order does not discuss a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso available on CD-ROM, as part of a commodities actually traded internationally. 10. There can be no dispute over the proposition that immovable property, be it immovable steel structure embedded in earth or a constructed building, cannot be subjected to excise duty which applies to excisable goods, i.e. to movables. In the making of an immovable structure or building are used a variety of movable. Raising iron and steel structures like sheds involves fabrication work and many of the articles used in raising the structure come into existence through fabrication as per the pre-determined design to be fitted into the structure that is to be raised. For example, roof frame may be fabricated for the roof structure of a shed. Such fabrication of frames may be done at the construction site or at some factory premises. The iron and steel frames fabricated at the factor)' premises away from the site of construction would be brought to the site for their use in erecting the structure. The frames prefabricated and brought at the site and frames fabricated the site of erection both are goods manufactured. There will be variety of parts of structures of iron and steel, that can be fabricate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacture all such items used for structure. He may order the doors and windows to be made by a particular manufacturer and roof frame-work by the other, depending on the specialization and expertise of the manufacturer of different items. The contractor may supply designs and raw material for various parts of structures and get the work done on job work basis. To save time and expenses he may get the fabrication done at the site of construction instead of getting it done at some distance in a factory. When the required parts are fabricated they will be fixed as per the designed structure and will continue to be moveable object until made immovable by permanently fixing them in the designed immovable structure. To say that no parts of the structures came into existence as distinct commodities because ultimately they got permanently fixed into an immovable structure will run counter to the legislative intent to impose excise duty on such excisable goods at a stage when they have a separate identity as marketable goods anterior to their being permanently fixed in the immovable structure. 10.1 It has been said in Aruna Industries (supra) by the Hon'ble Member (Technical) in the of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es are listed on the websites for various spans of trusses with delivery information, by those dealing in building supplies. 11.1 It is, therefore, difficult to view that trusses which are rigid frame-work to support roofs, bridges, cranes, etc., have no existence as a recognizable item of commerce "because a truss is only a function" as opined by the Hon'ble Member (T) in paragraph 26 of the judgment in Aruna Industries (supra). The mix-up of the expression "truss" as a transitive verb and the use of the word truss as a noun denoting rigid frame-work in the engineering world is more than obvious and the error has unfortunately percolate in several subsequent decisions that have followed Aruna Industries (supra). For the foregoing reasons, we cannot and, therefore, do not subscribe to that view and hold that trusses, purlins, and similar parts of structures are commercial articles having distinct character and identity than the raw material used for fabricating them, in the field of structural engineering. As noted above, purlins are articles distinct from raw angles, and C and Z types of purlins are well known in the field of structural engineering manufactured as marketable comm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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