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TMI Blog2019 (5) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... EPC contract for construction of port at Krishnapatnam Port Company Ltd., (KPCL) at a consolidate consideration. The EPC contracts, amongst others inter alia includes construction of Breakwaters in order to keep the sea water calm tranquil in the Harbour, where the ships will come for loading or unloading of goods. The construction of Breakwaters in the sea is based on various parameters of the port and the same is constructed by using Armoured Cement Blocks of various sizes, designs and weights. The Respondent manufactured these Armoured Cement Blocks known as "Kolos" at the Krishnapatnam Port site and used the same for construction of Breakwaters. On an investigation, DGCEI issued a show cause notice dated 13.05.2009 demanding Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atnam Port only but has forgotten to note that the said kolos are manufactured items; the meaning of word "Breakwaters" is that the reduce intensity wave action ensure water is claim. It is his submission that these kolos are fixed and also floating and can be used anywhere depending upon the local weather condition such as water density, tidal levels, etc. Further, it is his submission that the breakwater contract are kolos, the design is contract based on model studies, local conditions and partly remain the same. It is his further submission that in view of this the impugned order be set aside for which the purposes he relies upon the judgment of the Apex Court in the case of Andhra Pradesh State Electricity Board Vs. CCE, Hyderabad [199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed and distinguished in the impugned order. Further, except reproducing the findings of the relied case laws, there is no material evidence as to how the facts of the impugned case are similar to the facts in the cases relied by the appellant. Decision in Indian Cable Case says that "Marketable only means "saleable" or "suitable for sale" as it is, i.e. without anything more" and here in the impugned case, it is clearly established that the "kolos" are specific for "Break Waters" at Krishnapatnam Port only and nothing else. In Afcons Infrastructures Ltd., case [2008 (232) ELT 274 (Tri. -Del)] also, the decision is with regard to the marketability of girders manufactured at site, which are for fixing on the piers already created. Thus, I fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to achieve a tranquilled water front for receiving ships and berthing the same for loading and unloading of cargo, as established by model studies, two breakwaters - one on North and another on South of the Port approach cannel are essential for operating the port.- The location, alignment & orientation and lengths are arrived at from the model studies. The basic design parameters viz. waves, currents, tides are established from specific filed observations and general data from IMB, NHO, and site survey. The breakwaters are designed for maximum waves approaching from south west, armour blocks are designed on stability considerations. The salient features of the breakwaters are as follows: South Breakwater: Length - 1574 m extending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on any such requirement clause in the contract, but incidental a per the requirement dependent on the said conditions specific to the port. This aspect also proves beyond doubt that the goods manufactured are not marketable as such. Further, similar goods were manufactured by Visakhapatnam Port Trust and dutiability of these goods were decided by the Hon'ble Apex Court in the case of Board of Trustees Vs CUE [2007 (216) ELT 513 (S.C.)]. Further, in the same case laws that are relied by the appellants, it is clearly said that the concept of 'marketability' is not dependent on the fact whether the items are actually purchased or sold and it is a question of fact to be decided in the facts of each case and there can be no genera ..... X X X X Extracts X X X X X X X X Extracts X X X X
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