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TMI Blog2005 (6) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... ucts such as plates, angles etc., by subjecting them to processes of cutting, welding, rivetting etc., into items required for erection amounts to manufacture since the resultant goods have a distinct name from the raw materials. 3.In his order he demanded an amount of Rs. 1,14,28,688/- for the period from 12-1-87 to 5-11-88. M/s. AFCONS appealed against the order of the Collector. Meanwhile, the Department filed a miscellaneous application dated 17-5-93, seeking to change the classification of the Dock Roof Structure... and dock gates (Caisson and flap gates) from 7308.90 to 8486.00 and 8907.00 respectively. The SCN proposed to demand duty on the part of steel structures and dock gates whereas the miscellaneous application sought to demand duty on steel structure and dock gates in finished conditions. AFCONS filed a miscellaneous application that the demand is hit by time-bar under Section 11A of the Act, while the SCN is issued on 5-1-89 invoking the larger period. 4.The Tribunal passed final order dated 3-3-97 remanding the matter back to the Commissioner with the remark that there has to be a clear finding by the original authority on the question of marketability, limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m in addition to M/s. AFCONS. No specific order has been given on the issue of imposing penalty on these individuals. (vi) No penalty was imposed against M/s. AFCONS in the said Adjudication Order. When the Commissioner has confirmed the demand made in the Show Cause Notice, it appears that, he has no option to refrain from imposing penalty does not appear to be correct in the light of Hon'ble Supreme Court's order in the case of Z.B. Nagarkar v. Union of India, wherein the court has clarified that, imposition of penalty is imperative/mandatory and only the amount of penalty imposable by the Adjudicating Authority is discretionary. 6.The grounds of appeal in respect of AFCONS are as follows : I. The Commissioner's finding that process of cutting, welding, drilling carried out on the items like steel plates, angles, beams, etc…, purloins, runners amounts to manufacture is not correct. The appellants rely on the following decisions to substantiate that the above processes do not amount to manufacture : • Aruna Industries and others v. Collector -1986 (25) E.L.T. 580 • ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord is judged by the company which it keeps". In view of these it is submitted that the word appearing in the CH 7308.90 will not include the structures and parts thereof. It will only include the articles, which are used in day-to-day in the house. VI. There is no finding given by the Commissioner on the issue of marketability of submarine roof portal and Gantry beam rail and the decisions of the Hon'ble Apex Court, High Court and Tribunal, relied upon by the appellants that the impugned goods are not marketable are not distinguished. VII. Submarine Roof Portal Frame and Gantry Crane Beam Rails are immovable structures. Even the Collector in his earlier order has observed the following : "It would also be clear that the various fabrications produced with the processes like cutting, welding, drilling, rivetting etc., utilized the inputs like angles, channels plates form the entire structure that is to be erected and as such the structure can be stated to have been produced in knocked down condition; this is also evident from the demarcations given to the various fabricated items" VIII.The appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; Heavy Water Board - 1999 (107) E.L.T. 210 (T) • Vazir Sultan Tobacco Co. Ltd. - 1996 (83) E.L.T. 3 (S.C.) • Cosmic Dye Chemicals - 1995 (75) E.L.T. 721 (S.C.) • Padmini Products - 1989 (43) E.L.T. 195 (S.C.) • Chemphar Drugs & Liniments - 1989 (40) E.L.T. 276 (S.C.) • Mittal Engineering Works (P) Ltd. - 1996 (88) E.L.T. 622 (S.C.) • Triveni Engineering & Industries Ltd. - 2000 (120) E.L.T. 273 (S.C.) • Quality Steel Tubes (P) Ltd. - 1995 (75) E.L.T. 17 (S.C.). 7.Shri S.S. Gupta, learned consultant appeared for M/s. AFCONS and Shri L. Narashimamurthy appeared for the Revenue. 8.We have gone through the submissions of AFCONS and the Revenue in respect of the appeals filed by them. The admitted facts are that M/s. AFCONS undertook a work contract with the Chief Engineer Dry Dock Visakhapatnam. As far as the present dispute is concerned the items of work are as follows: (1) Submarine dock ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t no transformation is taking place. The Commissioner in his adjudication order has also not given any finding as regards the marketability of the items. 11.As regards the dock gates (caisson & flap), the Tribunal in the party's own case has held that Caisson gate of dry dock constructed at site step by step as part of Glider is not marketable as such and not excisable. Of course, the adjudicating authority has also held that the dock gates are not excisable. However, Revenue in their appeal has stated that the items in the CEGAT's decision are different from the present appeal. We are not inclined to accept Revenue's contention. The fact that the Caisson gates are fitted to the hinges cannot make them moveable. "Dry dock caisson" means the floating gate to a dry dock. When the gate is opened Water floods the dry dock so that the ship can enter it. Once the ship is inside the dry dock, the caisson gate will be closed and the water inside the dry dock would be pumped out. Afterwards the workers can repair the ship. This is the function of dry dock caisson. What has been dealt with in the CEGAT's order is the same as the present goods. 12.In the landmark case Thungabhadra Steel Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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