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TMI Blog2018 (3) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to the benefit of cenvat credit on goods procured from outside subject to verification of such entitlement on the basis of documents to be produced by the appellant. It is also fairly well settled that the total consideration received is to be considered as cum duty price and such benefit will be entitled to the appellant. The demand for Central Excise duty under 9406 made in the impugned order is upheld but with the modification that the appellant will be entitled to CENVAT credit subject to the verification of documents - appeal allowed in part. X X X X Extracts X X X X X X X X Extracts X X X X ..... bsequently despatches under commercial invoices. The bought out goods as well as those components manufactured in the factory were assembled at site into the form of green house which was not liable to payment of duty, being an immovable property. (iii) The department has considered the green houses to be classifiable under "pre-fabricated buildings" falling under 94060019. The adjudicating authority has charged Central Excise duty on the total value of goods including the goods manufactured in the factory as well as bought out components, even though the value of the bought out components was much more than the value of the goods fabricated in their factory. (iv) He submitted that the goods supplied by the appellant were not ready to assembly units for green houses and hence, they are not liable for classification under 94060011 as claimed by the adjudicating authority. They are classifiable only under 94060019. He further submitted that the HSN Explanatory Note under heading note 9406 specifies that when the parts of buildings and equipments are presented separately, (other than ready to assembly sets), such goods are excluded from the heading 9406 and are to be classified in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed. The appellant is required to assemble such green house at the specific site and handover the same. In the appellant's factory some of the components required for such green house are fabricated. Such components include pipes, girders, column etc. The rest of the items required for putting together green houses are procured from outside. These include minor components such as nuts, bolts etc. and also major elements such as class/ polyfilm sheets which are required for use in the ceiling as well as wall of the green houses. It so happens that the value of bought out items are much more than that of the goods fabricated within the factory. Before proceeding further we reproduced below the competing tariff headings: 8424 Mechanical appliances (whether or not hand-operated) for projecting, dispersing or spraying liquids or powders; fire extinguishers, whether or not charged; spray guns and similar appliances; steam or sand blasting machines and similar jet projecting machines 8424 10 00 -Fire extinguishers, whether or not charged.......... 8424 20 00 -Spray guns and similar appliances....................... 8424 30 00 -Steam or sand blasting machines and similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accommodation, offices, schools, shops, sheds, garages and greenhouses, are generally presented in the form of: -complete buildings, fully assembled, ready for use; -complete buildings, unassembled; -incomplete buildings, whether or not assembled, having the essential character 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 on the site (sills, insulation, etc.) ... ... Presented separately, parts of buildings and equipment, whether or not identifiable as intended for these buildings, are excluded from the heading and are in all cases classified in their own appropriate headings". (Emphasis supplied) 9. To decide the correct nature of the goods supplied by the appellant, it is necessary to examine whether what has been supplied is pre-fabricated buildings in ready to assemble sets or only components of the pre-fabricated buildings. 10. The claim of the appellant before the adjudicating authority as well as in appeal is that only some ..... X X X X Extracts X X X X X X X X Extracts X X X X
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