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TMI Blog2017 (10) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... withstanding their getting permanently fixed in the structures. Further it also held that the plates rods, angles, shapes, sections, tubes and the like prepared for use in structures of the types covered under the Heading 7308 will also be excisable goods subject to duty in their pre-assembled or disassembled state - there is no doubt that the subject process and the items in question are covered under the process of ‘manufacturing’ under Section 2(f) of the Central Excise Act, 1944 and the liability of duty of Central Excise on the subject items has to be sustained. Penalty - Held that: - as there was lack of clarity on the subject of liability of duty for the subject items during the relevant period and when there were interpretational issues involved, following the ratio of the Hon’ble Punjab & Haryana High Court’s decision in CCE Vs. Jain Ganesh Processors [2011 (3) TMI 134 - PUNJAB AND HARYANA HIGH COURT], no penalties are liable to be imposed on the appellants. Appeal allowed - decided partly in favor of appellant. - E/380-382/2007-DB - A/55888-55890/2017-EX[DB] - Dated:- 17-8-2017 - Mr. (Dr.) Satish Chandra, President And Mr. Ashok K. Arya, Member (Technical) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise Act, 1944. (vii) The Show Cause Notice was adjudicated by Additional Commissioner, who confirmed the demand and imposed penalties on the appellants. (viii) Thereafter, the appellant went in appeal before Commissioner (Appeals), who vide impugned Order-in-Appeal sustained the Order-in-Original thus rejecting their appeals. (ix) Hence, the appellants are now before this Tribunal against the said Order-in-Appeal dated 17.1.2007. 3. All the appellants represented by ld Advocate, Shri Anurag Rishi and the Revenue represented by ld. DR, Shri M.R. Sharma have been heard. 4. The main submissions of the appellants are that: (i) The process involved does not amount to manufacture as they are engaged in erection, fabrication of the structures at site permanently embedded to earth. (ii) They were under their bona fide belief that their activities are works contract for erection of bridges as the turnkey project; there is no suppression of facts by the appellants. (iii) The Hon ble Supreme Court has held in its judgement 2003 (151) ELT 3 CCE Vs. Domodar Ropeway Construction Ltd. , as also in Mittal Engineering Works Vs. CCE 1996 (88) ELT 622 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n structures of iron and steel. Bridges and bridge-sections, Towers and lattice masts. Doors, windows and their frames and thresholds for doors, Props and similar equipment for scaffolding, shuttering or pit-propping, are items from those enumerated in the parenthesis, falling under sub-headings 7308.10, 73.20, 7308.30 and 7308.40. The article mentioned in the parenthesis are only illustrative and indicated by ways of examples. Roofs, roofing frame-work, shutters, balustrades, pillars, columns which are also in the parenthesis are not mentioned in the aforesaid subheadings and they would, therefore, fall in the residuary subheadings 7308.90 Other , and, these too would be considered to be illustrative and not exhaustive so far as the said residuary sub-heading is concerned. The latter part of the Heading 73.08 refers to plates, rods, angles, shapes, tubes and the like, prepared for use in structures of iron or steel in respect of articles other than those mentioned in the parenthesis and which are prepared from these members for use in structures of iron or steel. The question whether they would be included in the residuary sub-heading Other in sub-heading 7308.90 would obviou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocess was undertaken to bring them into a particular commercially known shapes and assemble them for that purpose as per the designs and having fabricated them, to use them for permanently fixing them in the structures which were to be erected as per the design under the works contracts. 13. There can be no dispute over the proposition that it is always open to the assessee to prove that even though the goods in which he was carrying on business were excisable goods being mentioned in the Schedule, they could not be subjected to duty as they were not goods either because they were not produced or manufactured by it or if they had been produced or manufactured they were not marketed or capable or being marketed, as laid down in Moti Laminates P. Ltd., by the Hon ble the Supreme Court. It is a settled law that, for the product to be marketable there need not be actual purchase or sale. So long as a new and distinct commodity known in the market has come into existence, there is manufacture. In A.P. State Electricity Board [1994 (70) E.L.T. 3 (S.C.)], the Supreme Court in paragraph 10 of the judgment after considering the earlier decisions of the Court, held that the mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary that there must be a number of persons to whom it can be sold, that there be no physical or legal barrier to its transportation to that place or to its being offered there for sale, and that the cost and expenses of transportation shall not exhaust the gain that can be derived from the expected opportunity to sell. There are commodities, which as a result of spatially limited requirements for them, can be sold only in a single town or village, others that can be sold only in a few provinces, some only in a certain country, others in all civilized countries, and still others that can be sold in all the inhabited parts of the world. Again, the marketability of a commodity is restricted quantitatively to the requirements for it that have still to be met and the quantitative limits of marketability are remarkably different for different goods. Commodities are also limited in their marketability with respect to the time periods in which they can be sold. Thus, there are goods for which requirements exist only in winter; others for which they exist only in summer; and in respect of perishable goods marketability gets restricted to a narrow time period. The marketability of comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parts in their pre-assembled or disassembled state of an identifiable article of the types of the parts of structures covered under Heading 73.08. Answer to the question referred : 15. For the foregoing reasons, we are unable to accept any of the contentions raised on behalf of the appellants and we answer the question referred to us as under :- (i) The immovable iron and steel structures not being goods will not fall under Heading 73.08 of the Excise Tariff. (ii) The structures or parts thereof mentioned in the parenthesis of Heading 73.08 illustrating parts of structures namely, bridges and bridges-sections, lock-gates, towers, lattice masts, roofs, roofing frameworks, doors and windows and their frames and thresholds for doors, shutters, balustrades, pillars and columns as well as parts of structures such as, trusses, purlins, columns, beams, rafters, glazing frames, crane girders, hoppers, bracings, gable runners, platforms, hand-rails, grating rails, walk-ways, stairs, gutters supports, ladders, gantries, railings, portals, pushings, round surged, inserts, drop-boxes, windties, framework partitions, north light glazing, sliding frames and the like a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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