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TMI Blog2013 (11) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... ng' claiming classification under sub-heading No. 9406.00 of CETA, 1985 at nil rate of duty. (iii) The respondent by letter dated 3.9.1999 addressed to the Assistant Commissioner of Central Excise informed that they were proceeding to clear the goods at NIL rate of duty under sub-heading No. 9406.00 as per revised declaration filed by them, as anything contrary was not heard by them. (iv) From 22.2.2000, the respondent started to clear the pre-fabricated buildings under sub-heading No. 9406.00 at NIL rate of duty. (v) They were utilizing common inputs in the manufacture of dutiable goods (i.e. pre-fabricated structure) and exempted goods (i.e. pre-fabricated building). They paid the amount equal to 8% on the value of pre-fabricated building in terms of Rule 57CC of the said Rules, 1944 in respect of each invoices at the time of clearance of pre-fabricated building. (vi) Five Show Cause Notices were issued proposing demand of duty and imposition of penalty classifying the goods under Heading No. 73.08 of CETA, 1985 which attracted duty @ 16% advelorem against the clearance of goods of various contracts, as under:- S. No. Show Cause Notice No. & Date Period Contract of 1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation Vs. CCE -1999 (113) ELT 336 (b) CCE Vs. PMG Structurals Pvt. Ltd. -2010 (250) ELT 113 which has been upheld by the Hon'ble Supreme Court as reported in 2010 (254) ELT A101 (SC). (c) Sangameshwar Pipe & Steel Traders Vs. CCE -2002 (141) ELT 252 (d) Aarti Steels Ltd. Vs. CCE -2002 (144) ELT 360 4. The learned counsel on behalf of the respondents reiterates the findings of the Commissioner (Appeals). He submits that it is apparent from the purchase orders that the fabricated items supplied by the respondents are pre-fabricated buildings. He submits that it is not an ordinary fabricated item. In other words, the fabricated items were manufactured as per drawing of the pre-fabricated buildings and removed in unassembled condition. It is also contended that as per HSN Note incomplete buildings unassembled with the necessary elements may be presented partially assembled for setting up on the site and it would come within the purview of pre-fabricated building. He also referred to the relevant portion of the HSN Notes and the Chapter Note of Chapter 94. He relied upon the decision of the Tribunal in the case of CCE Vs. PMG Structurals Pvt. Ltd. -2010 (250) ELT 113 which has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of prefabricated buildings In the case of buildings presented unassembled, the necessary elements may be presented partially assembled (for example, walls, trusses) or cut to size (beams, joists, in particular) or, in some cases, in indeterminate or random lengths for cutting in the site (sills, insulation etc.) The buildings of this heading may or may not be equipped. However, only built-in equipment normally supplied is to be classified with the buildings. This includes electrical fittings (wiring, sockets, switches, circuit breakers, bells, etc.) heating and air-conditioning equipments, (boilers, radiators, air-conditioners etc.) sanitary equipment (baths, showers, water heaters etc.) kitchen equipment (sinks, hoods, cookers etc.) and items of furniture which are built in or designed to be built in (cupboards etc.) Material for the assembly or finishing of prefabricated buildings (e.g. nails, glues, plaster, mortar, electric wire and cables, tubes and pipes, paints, wallpaper, carpeting) is to be classified with the buildings, provided it is presented therewith in appropriate quantities. Presented separately, parts of buildings and equipments, whether or not identifiable as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ast defect, whichever occurs later. So the onus of providing a leak proof and stable building lies with the appellant. Therefore, it cannot be said that the impugned goods are iron and steel structures only. I hold the view after perusing the work order as well as the diagram (placed at page 61 of case records) that the goods supplied by the appellant are only pre-fabricated building. In this regard, I do not agree with the findings of the lower authority in para 24 & 25 as the work includes the provisions for making the wall by the appellant with 0.5 mm TCT RMP coated galvanized steel glading sheet. Further, on perusal of the HSN Notes at P 1706 1707, I am of the view that walls is not an essential part of pre-fabricated building which is also known as industrialized building as per HSN Notes. On perusal of the photos found in pages 41 to 53 of the case records, my above view is strengthened. Therefore, by no stretch of imagination, description mentioned under Chapter 73 can be applied to the present goods, as that chapter description mentions only about the bridges, towers, scaffoldings etc. whereas on perusal of the work order, I observe that the appellant is to supply pre-fabri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MT 23,324.00 9,562,840.00 B -DISMANTLING & RE-ERECTION OF EXISTING ITEMS 10. It is seen from the appeal filed by the Revenue that the respondent in their reply dated 20.6.2000 to Show Cause Notices contended that they manufactured and cleared steel structure under Heading No. 73.08 on payment of duty. They also cleared pre-fabricated building in SKD/CDK condition under Heading No. 94.06 at NIL rate of duty. So, it is required to examine each and every purchase order / contract to determine the supply of steel structure or pre-fabricated building. On perusal of the purchase orders as mentioned above, we find that purchase order dated 24.2.2001 of Godrej Agrovet Ltd. is structural work for shrimp feed plant. Similarly, purchase order dated 14.1.2000 of C.R. Narayana Rao is construction of pre-fabricated steel building and cloaking for New Storage System Equipment Factory of M/s. Godrej & Boyce Mfg. Co. Ltd. But the schedule of the said purchase order indicates that the respondent would undertake 'structural steel work' and 'Dismantling and re-erection of existing items' which cannot be classifiable under Heading No. 94.06 as pre-fabricated building ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The findings of the Tribunal are as under:- A holistic examination of the manufacturing activity in relation to the drawings and specifications of the customer reveals that they manufacture and clear only prefabricated buildings in un-assembled condition and are not clearing panels in random and uncertain lengths. They clear panels in specific and exact dimensions along with accessories, which when assembled at site gives rise to buildings. Hence, the same is classifiable under Chapter Heading 94.06 only. Reliance was placed on the decision of the Hon'ble CESTAT, West Zonal Bench, Mumbai in the case of M/s. Beard Sell Ltd. v. CCE, Belpur, 2006 (193) E.L.T. 325 (Tri.) wherein it was decided that such goods are classifiable under Chapter 94.06 of CETA only. 7. Our attention was invited to the copy of the order dated 24-1-2004 placed by M/s. APP Mills Ltd. M.R.. Palem, wherein the scope of the said order has been mentioned as fabrication, supply, erection and installation of Pre-Engineered Building structures and C.C sheets, which will form the lean to roof building and it has been specified that the design and fabrication of the bui ..... X X X X Extracts X X X X X X X X Extracts X X X X
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